Preamble

The House met at half-past Two o'clock

PRAYERS

[Mr. Speaker in the Chair]

PRIVATE BUSINESS

British Railways (No. 2) Bill (By Order)

Order for consideration read.

To be considered tomorrow.

Newcastle upon Tyne Town Moor Bill [Lords]
(By Order)

Read a Second time and committed.

Harwich Harbour Bill [Lords] (By Order)

Order for Second Reading read.

To be read a Second time tomorrow.

Oral Answers to Questions — ENERGY

Magnox Power Stations

Mr. Corbyn: To ask the Secretary of State for Energy what recommendations he has received from the Nuclear Installations Inspectorate on the case for additional safety measures for Magnox power stations.

The Secretary of State for Energy (Mr. Cecil Parkinson): The Health and Safety Executive's Nuclear Installations Inspectorate has asked the licensees of the Magnox power stations to carry out a long-term safety review for each station. These reviews are assessed by the NII, whose findings and requirements for continued operation are being published.

Mr. Corbyn: What is the cost per station and in total of all the safety measures required by the NII? Is the Minister prepared to review the unit cost of electricity generated by Magnox nuclear power stations and, in the light of that review, to consider phasing out those stations on grounds of safety, environmental damage and cost of eleclricity generation?

Mr. Parkinson: No, Sir. Each Magnox station is independently subject to long-term review. Two reviews have so far been completed. In the case of Berkeley, the cost of making the changes necessary to enable the station to continue to work until 1992 simply was not justified, whereas in the case of Bradwell it was. These are matters for the commercial judgment of the Central Electricity Generating Board, coupled with the fact that the NII must be satisfied before issuing a certificate and allowing the station to continue. Each station will be reviewed individually. It will be for the NII to say what is necessary to be done and for the CEGB to decide whether it is worth doing.

Mr. Marlow: Will my right hon. Friend tell the sandal-wearing, nut cutlet-eating—[HON. MEMBERS: "The Guardian-reading."]—yes, The Guardian-reading, bearded fanatics who have it in for nuclear power that in reality the environmental danger of fossil-fuel generated electricity as it is now produced is far greater than that of nuclear power? Will my right hon. Friend consider implementing an urgent programme to extend the amount of nuclear power generation in this country?

Mr. Parkinson: My hon. Friend is right. There is a strong argument that the safest and least-polluting source of energy is nuclear power, when installations are properly built, designed and regulated.

Mr. Matthew Taylor: In view of the great public interest, will the Secretary of State make available the full report on Berkeley and not just a summary? Will he also state the time scale for reports on Oldbury, Trawsfynydd and Sizewell A?

Mr. Parkinson: The CEGB has had the report on Berkeley. It has announced that the station will be closed and will cease to operate from March next year. That is a matter for the CEGB and the NII. The NII is clearly satisfied that it is safe for the station to operate during that period, or it would have withdrawn the licence. The NII has made recommendations about what would need to be done to keep the station working and the CEGB has decided not to spend the money, but the main fact is that the station is safe.

Mr. John Garrett: Will the Minister please come clean about the cost of nuclear safety, the cost of decommission-ing the old Magnox stations, which is roughly estimated at £2·5 billion, and the uneconomic cost of nuclear power in general? Is he aware that electricity privatisation will be subject to the Financial Services Act 1986, which makes it a criminal offence to make deliberately or recklessly misleading forecasts to induce shareholders to invest?

Mr. Parkinson: As I am sure the hon. Gentleman knows, it is very hard to put an exact figure on the cost of decommissioning. The process could take up to 100 years. There are three stages. The first is withdrawal of the fuel and the second is the immediate decommissioning. There then is the decision on how long the station will be allowed to be maintained in a secure state so that the natural reduction in radiation can take place, which will make it safer for the workers when the final decommissioning is carried out. Provision is made for each station and is estimated at about £300 million over the period of decommissioning, which could be up to 100 years. I should add that coal—the Opposition's preferred option—is a massively expensive pollutant. If costs could be attached to coal with the same certainty as they are to nuclear energy, coal might look very dubious. Indeed, there is a school of thought that the British electricity user has been subsidising the mining industry to the tune of about £1 billion per year for the past 10 years.

Electricity Industry (Regulator)

Mr. Rost: To ask the Secretary of State for Energy when he expects to appoint the Regulator to oversee the electricity industry in the private sector.

The Parliamentary Under-Secretary of State for Energy (Mr. Michael Spicer): We plan to appoint the Regulator and have his office established by the time the industry has been reorganised for privatisation.

Mr. Rost: Is my hon. Friend aware of the widely held view, especially among prospective independent electricity producers who can provide the competition that the Government want, that the Regulator should be appointed as soon as possible in the transition period so that the contractual arrangements can be monitored in the run-up to privatisation?

Mr. Spicer: We clearly cannot appoint a Regulator until the necessary legislation has passed through Parliament. Until the Regulator is appointed and the regulatory regime is in place, the Government will oversee, or, to use my hon. Friend's word, "monitor", the electricity supply industry's preparation for privatisation. In particular, we shall oversee the negotiations of the initial contracts between distribution boards and the CEGB's successors. We shall not permit practices designed to stifle competition or to prevent distributors from making contracts with new sources of supply.

Mr. Prescott: Will the Minister confirm that the profit rates allowed by the Regulator for privatised electricity will be double those allowed for the public sector, which will confirm the fears of industry and consumer groups that Britain's electricity prices will move from being among the cheapest to becoming among the most expensive in the world? Will he also confirm that the salary of Lord Marshall, chairman of the new privatised company, will treble to £200,000 for managing a company that is 30 per cent. smaller? Will the Regulator be able to consider that exploitation of the consumer?

Mr. Spicer: I cannot confirm either of those questions, the second of which is a figment of the hon. Gentleman's imagination. As to profit regulation, the hon. Gentleman clearly has not seen the procedents for regulatory regimes or what we have written about them, because they will operate, not on profit regulation, but on price regulation

Coal Industry

Mr. Allen McKay: To ask the Secretary of State for Energy if he has discussed recently with the chairman of British Coal the effects of privatisation of the electricity industry upon the British coal industry.

Mr. Parkinson: I meet the chairman of British Coal regularly to discuss all aspects of the coal industry.

Mr. McKay: Given that the paper sponsored by the Financial Times, "Coal on the market", says that the deep mines which could compete in 1995 will be closed in 1990 if the Government encourage a free-for-all in coal imports, given that the International Coal Development Institute has said that nuclear power is never likely to be able to compete with coal-fired power stations, and given British Coal's argument that it will need a 10-year contract after the privatisation of the electricity industry to secure the coal industry's future and the energy future of this country, will the Secretary of State stop considering his long-term political future and consider instead the long-term energy requirements of this country and give British Coal the contract?

Mr. Parkinson: Under this Government more than £9 billion has been invested in the coal industry, £6 billion of which has been in new capital equipment. The Government have shown a commitment to the industry that no previous Labour Government have matched. Our objective is to produce a modern British coal industry that is capable of beating foreign competition, not because it is protected against it, but because it outperforms it. Given our plans for the electricity industry, which envisage a substantial market for coal, and the amount of money invested in the industry to put it in a position to compete, the hon. Gentleman should begin to share my optimism that British Coal has a good future.

Mr. Dickens: Does my right hon. Friend agree that the future of the coal industry is in the hands of the workers? High productivity, flexible working, less time off work and fewer strikes will help the industry to compete with the rest of the world. Other countries are exporting coal to the United Kingdom, and I believe that the workers are beginning to realise that.

Mr. Parkinson: My hon. Friend is correct, and the point is clearly understood by many people who work in the coal industry. For example, the Scottish miners have made it quite clear that they are prepared to adopt flexible working if that is a way to secure their jobs. The Welsh miners have made it quite clear that they want Margam, and they are prepared to adopt flexible working. The only people who appear not to understand the need for better productivity in the mining industry are Opposition Members and some trade union leaders in the industry.

Mr. Eadie: Is this anti-coal Secretary of State aware that there is widespread opposition to freeing private generators to buy coal at the cheapest possible price available—his stated policy—irrespective of whether it damages the British coal industry? Will he tell the House what reply he has made to the warnings of the chairman of British Coal about the policy that the right hon. Gentleman is hell-bent on pursuing?

Mr. Parkinson: During the previous energy Question Time the hon. Gentleman said that the Scottish coal industry was about to close down and that my remark, that I felt that agreement would be reached on a sensible basis, was not true. His assertions have been exposed as completely untrue and ill-founded. His earlier assertions about my approach to the coal industry are equally ill-founded. I believe that British Coal has a future free from the sort of protection and life support systems that the hon. Gentleman appears to believe are its only means of survival

Piper Alpha Disaster

Mr. Chapman: To ask the Secretary of State for Energy if he will make a statement on the daily loss of oil and gas volumes as a result of the Piper Alpha disaster; and what proportions of the total United Kingdom production these represent.

Mr. Parkinson: At the time of the disaster the daily oil production of the Piper Alpha platform was 120,000 to 130,000 barrels a day. Some 150,000 therms of gas per day were also produced and sold to British Gas.
Five other fields linked to Piper, producing an additional 180,000 barrels of oil and 350,000 therms of

sales of gas per day, are currently shut down, but should be back in production within a few months. The total combined loss in daily production of Piper and those other fields at the time of maximum impact is equivalent to about 12·5 per cent. and 1 per cent. of total United Kingdom production of oil and gas respectively.

Mr. Chapman: I thank my right hon. Friend for giving the House those figures. Does he agree that however serious the disaster is from an economic point of view, it is of paramount importance that the safety of those working on our rigs and winning valuable resources from under the North sea is the main issue, and that nothing must be done to prejudice their safety? Would he like to take this opportunity to comment on whether those figures, serious as they may be, have had a bad impact on our balance of payments, or whether they are not as bad as was first thought?

Mr. Parkinson: I wholeheartedly agree with my hon Friend—I am sure that the whole House does—that safety in the North sea must be of absolutely prime importance.
On my hon. Friend's second point, I read today an estimate that it would cost about £500 million a year to our balance of payments. We regard that as excessive. It is based on the assumption that the fields associated with Piper will remain out of action for the rest of the financial year. We believe that they will be back in action well before then. Our estimate of the impact is something less than £300 million.

Mr. Salmond: Does the Secretary of State accept that the environment and safety provisions in the North sea originated when early production from the North sea was an overwhelming priority? Might it not now be time to review that priority and the safety regimes?

Mr. Parkinson;: As the hon. Gentleman knows, a number of different bodies take part in certifying the platforms and safety in the North sea. The independent certification authorities are responsible for the equipment and construction of the rigs; the Department of Transport for the safety arrangements, fire detection and fire fighting; the Civil Aviation Authority for the helicopters; and that under the Health and Safety at Work etc. Act 1974, which was extended to the North sea in 1977, my Department's inspectorate carries out its duties in the North sea. Therefore, a substantial range of different bodies check different aspects in the North sea. I have set up the inquiry. If the inquiry recommends that things should be done differently, we will accept those recommendations

Mr. Barry Field: I understand that the advice of my right hon. Friend's Department on the durability of North sea oil supplies featured heavily in the minds of the military planners when establishing the amount of the tonnage required to service this country during time of armed conflict. In view of this dreadful disaster, will my right hon. Friend review that strategic advice.

Mr. Parkinson: I had not planned to do so to date. I hope that my hon. Friend heard my earlier answer, in which I pointed out that, at worst, the loss of production is about 12·5 per cent. of our total oil production and that we expect that figure to fall sharply when the associated fields come back on stream, which we expect to be within a few months.

Mr. Doran: The Secretary of State has already mentioned the public inquiry into the Piper Alpha tragedy. Many of the victims' relatives and survivors will wish to be represented at that public inquiry, which may be important to their compensation claims against whoever is responsible. Bearing in mind the precedents of other public inquiries, will the Secretary of State consider extending legal aid or meeting the costs of that representation for those victims and survivors?

Mr. Parkinson: I cannot commit the Government to doing that at the moment, but I am aware of the other precedents and am giving the matter serious thought.

Mr. Cormack: Is my right hon. Friend aware that his promise to accept the inquiry's recommendations will be reassuring to many people?

Mr. Parkinson: The overwhelming priority is to have a regime in the North sea that is as safe as possible. If the inquiry identifies ways of improving the present regime, of course we will adopt them, because we all have a prime interest in safety

Acid Rain

Mr. Pike: To ask the Secretary of State for Energy what recent representations he has received for additional retrofitting of flue gas desulphurisation equipment at existing power stations to reduce the problems of acid rain.

Mr. Michael Spicer: A few letters have been received by my Department on this and other aspects of acid rain.

Mr. Pike: Does the Minister accept that there is obviously concern in Europe and in certain parts of the United Kingdom about the pollution and acid rain that is caused by our power stations? Is he satisfied with the CEGB's rate of progress in the retro-fitting that has already been agreed? Will he speed that up, and does he agree that there should be more?

Mr. Spicer: We accept that there is some anxiety on this matter in Europe and elsewhere. That is why the Government are committed to agreeing to the EC large combustion plant directive, by which sulphur dioxide emissions will be reduced by 40 per cent. on the 1980 figures by 1998, and by 60 per cent. by 2003. That comes on top of the 40 per cent. reduction since 1970.

Sir Trevor Skeet: Will the cost of the massive regulatory system to be introduced following privatisation be passed to the distribution industry or to the consumers, and not left with the manufacturers of electricity?

Mr. Spicer: The passing on of generating costs is being seriously considered in the context of consultations on regulation. I assure my hon. Friend that we are also seriously considering any discrimination between those which have flue gas desulphurisation and those which do not.

Mr. Barry Jones: May I have an assurance from the Minister that if Connah's Quay power station in my constituency, which is now redundant, were brought back on stream post-privatisation, desulphurisation equipment would be fitted? Does the Minister understand that up to 12 redundant power stations are being considered for use if privatisation goes forward? Does he know on average

how much it would cost per power station to fit desulphurisation equipment? We should be told those figures.

Mr. Spicer: The cost per large station of, say, 2,000 MW is about £220 million. The answer to the hon. Gentleman's first question is yes, that would be required. It is a matter for Her Majesty's Inspectorate of Pollution whether smaller stations should be fitted with this equipment.

Mr. Heathcoat-Amory: Is my hon. Friend aware that one coal-fired power station fitted with this equipment will use about 300,000 tonnes of limestone a year and will produce large quantities of sludge which will somehow have to be disposed of? Does he agree that we are solving one problem by creating another and that it would be preferable simply to burn less fossil fuel?

Mr. Spicer: My hon. Friend makes his own point in the last part of his question. His figure of 300,000 tonnes of limestone is correct, but it must be put in context. It is 0·3 per cent. of the United Kingdom's annual production.

Mr. Wigley: In view of the Secretary of State's comments that if the full environmental cost of coal were compared with nuclear electricity the comparison would be very different, is it not incumbent upon the Government to make sure that all the expenditure necessary to minimise acid rain is undertaken so that we do not suffer the environmental consequences that Wales is presently suffering?

Mr. Spicer: My right hon. Friend the Secretary of State said and I repeat that we are taking major steps to reduce acid rain to 60 per cent. of the 1980 figure by the year 2003

Nirex

Mr. Simon Coombs: To ask the Secretary of State for Energy when he next expects to meet the chairman of Nirex and what matters he proposes to discuss.

Mr. Michael Spicer: My right hon. Friend and I meet the chairman of Nirex from time to time. We discuss a range of issues.

Mr. Coombs: Is my hon. Friend aware of the widespread natural concern about the eventual location of the low-level waste disposal site? Does he agree that there is a need for Nirex to reach a decision on this matter as soon as it reasonably can? In view of the announcement in the House last week by our right hon. Friend the Secretary of State about the future of the fast breeder reactor at Dounreay, will my hon. Friend now undertake that if Nirex puts before the Department a choice of locations which include Dounreay, he will give favourable consideration to Dounreay on the grounds of the job creation that will result from the location of a low-level site there?

Mr. Spicer: I entirely understand my hon. Friend's view, which, I am sure, is shared by others, that a decision on the disposal of intermediate and low-level waste should be reached as soon as possible. We expect Nirex to report on its conclusions at the turn of the year or early in the new year. Until then it is keeping its options open on all possible disposal sites, including, but not especially,


Dounreay. I cannot give my hon. Friend any further assurances, but we are aware of the need for a speedy resolution of this matter.

Mrs. Margaret Ewing: Will the Minister pay special attention to the announcement at the weekend by the vice-chairman of the Highlands and Islands Development Board that the idea of using Dounreay as a base for the dumping of nuclear waste is completely unacceptable? Will the Department of Energy bear in mind that the dumping of low-level and intermediate waste in the Highlands and Islands is greatly resented by people, who see their enduring employment from fishing, agriculture and tourism being adversely affected?

Mr. Spicer: I think that there is some controversy in the area. I understand that Caithness council is quite in favour of deep disposal at Dounreay. I repeat what I said earlier. No decisions have been taken on this matter and all options are being kept open.

Mr. Moss: Will my hon. Friend allay the fears of some of my constituents who are worried about rumours that Nirex intends to bury nuclear waste beneath the sea bed in the Wash? Will he confirm that as yet Nirex has made no decisions, and does he agree that the technology required for sub-sea burial is still unproven?

Mr. Spicer: Deep sub-sea burial is certainly one of the options that Nirex is considering. The second option is burying on land, and the third is burying under the sea from the land.

Mr. Cryer: Will the Minister bear in mind that, among the critics of coal-fired powers stations on the Conservative Benches, there are a number of enthusiasts for nuclear power, led by the hon. Member for Northampton, North (Mr. Marlow)? Will the Minister communicate that information to the chairman of Nirex, so that he can sound them out and they can organise a welcome for the dumping of radioactive waste in every one of the constituencies of the Tory Members who are enthusiasts for nuclear power stations?

Mr. Spicer: I shall certainly ensure that the chairman of Nirex sees a copy of Hansard, so that he can read what the hon. Gentleman has said.

Electricity Transmission

Dr. Michael Clark: To ask the Secretary of State for Energy what research his Department is sponsoring into the technology of electricity transmission; and if he will make a statement.

Mr. Michael Spicer: My Department does not sponsor any research on the transmission of electricity. The CEGB is currently spending about £4·5 million a year on transmission research.

Dr. Clark: Will the application of new materials to electricity transmission lead to less unsightly pylons in the country, particularly in south-east Essex? Is there any commercial application for the materials that are associated with superconductivity, so that the size of the pylons can be reduced, making them smaller and less obtrusive?

Mr. Spicer: I am not a technical expert on this subject. The new superconducting materials were only discovered in the past 18 months or so. I understand that it is too early to say how they will affect developments in transmission.

Mr. Matthew Taylor: The Minister will be aware that, at present, transmission losses are not passed on in costs for getting electricity down to Cornwall. It is delivered to Indian Queens, and losses are paid for only after that. Can the Minister say whether that will still be the case after privatisation, or whether people in areas such as Cornwall, where there are considerable transmission losses in getting power there, will have to pay extra costs?

Mr. Spicer: I can assure the hon. Gentleman that the transmission costs will be transparent, both for the supergrid and for lower voltages. Everyone will know what the costs are, as will the Regulator when he decides which costs are allowable. That is one of the great advantages of the privatised system. Everyone will know to a far greater extent where he stands.

Mr. Knapman: Can the Minister confirm that the decision to close Berkeley power station, which is in my constituency, was made on financial grounds, and certainly not on safety grounds?

Mr. Spicer: I can confirm that. It was entirely a matter of the CEGB deciding that it would not be commercially sensible to carry out the requirements that the Nuclear Installations Inspectorate had laid down. It was entirely a commercial decision.

British Coal Corporation

Dr. Reid: To ask the Secretary of State for Energy when he last met the chairman of the British Coal Corporation; and if he will list the subjects discussed.

Mr. Janner: To ask the Secretary of State for Energy when he last met the chairman of British Coal; and what matters were discussed.

Mr. Eadie: To ask the Secretary of State for Energy when he next proposes to meet the chairman of British Coal to discuss matters affecting the coal industry.

Mr. Strang: To ask the Secretary of State for Energy when he last met the chairman of British Coal; and if he will list the subjects discussed.

Mr. Parkinson: I meet the chairman of British Coal regularly to discuss all aspects of the coal industry.

Mr. Janner: Has the Secretary of State discussed with the chairman of British Coal the rumour that is going around that the Government intend to close seven of the eight coal-powered stations in the Leicestershire, Staffordshire and south Derbyshire coalfields area by the year 2000? Can the Secretary of State confirm that it is intended instead to build coal-fired stations near the coast and to use imported coal? The Secretary of State will understand—if the rumours are correct—just how horrified coal miners, their families and all the people in those areas are.

Mr. Parkinson: I can truthfully tell the hon. and learned Gentleman that that is the first I have ever heard of that suggestion and that it has never been discussed at any time with me.

Mr. Eadie: When the Secretary of State told me last Question Time that an agreement between the SSEB and British Coal was imminent, was he aware that that agreement would last only until March next year? Does he agree that no industry, never mind the coal industry, can plan its operations over such a short period? In the light of his meetings with the chairman of British Coal, can the Secretary of State supply the House with information on the likelihood of British Coal taking the SSEB to court over the Longannet and Cockenzie power stations?

Mr. Parkinson: Last time we had energy questions we were approaching the deadline for agreement between the two parties, and I said that I had reason to believe that they would reach agreement. I hope that they will use the next year to negotiate to put the arrangements between them on to a long-term basis. I made it clear that both my right hon. and learned Friend the Secretary of State for Scotland and I believed that there was a good future for Scottish coal, especially with the strengthening of the inter-connector, which will open up the English market for Scottish electricity, which has previously been closed to it.

Mr. Eadie: What about the courts?

Mr. Parkinson: On the subject of the courts, the two parties are negotiating. I hope that the question of the interim interdict can be put on one side and that they can focus on reaching long-term agreement.

Mr. Ashby: Will my right hon. Friend congratulate the chairman on the most successful visit that he organised last Friday for my hon. Friend the Parliamentary Under-Secretary of State and me to opencast sites in my constituency of Leicestershire, North-West? Will my right hon. Friend remind the chairman that there are a large number of areas of dereliction caused by mineral extraction and that it is in those areas, and those areas only, that opencast mining should take place in the next 10 to 15 years?

Mr. Parkinson: I heard from my hon. Friend this morning that he had found the visit extremely interesting. I think we all recognise that there is an important place for opencast coal in meeting our future coal needs. I am sure that the hon. Member for Midlothian (Mr. Eadie), the Opposition Front Bench spokesman who speaks for Scotland on these matters, will share my pleasure that the Northern Ireland Electricity Company has decided that Kilroot will be a coal-burning station and that that coal will be supplied from Ayrshire on a very competitive basis.

Mr. Andrew Mitchell: When my right hon. Friend next speaks to the chairman of British Coal, will he make a point of congratulating the Nottinghamshire miners on turning in an operating profit of £48 million during the past year, as well as on the very steep increases in productivity obtained by those miners during the same period? Will he make it clear that the important point is for the industry single-mindedly to pursue increases in productivity as the best guarantee of competitiveness and the long-term future of the industry, regardless of whether it is in the public or the private sector?

Mr. Parkinson: I shall draw my hon. Friend's remarks to the chairman's attention. I repeat that this point is recognised increasingly throughout the industry. In the

past 12 weeks, six successive productivity records have been achieved, so the men working in the industry recognise that their future is literally in their hands.

Mr. Redmond: Does the Secretary of State agree that British Coal pensioners who helped produce coal to meet the needs of the country during two world wars—with blood, sweat and tears—receive a smokeless fuel allowance that is totally inadequate? When he next meets the chairman of the Coal Board, will he ask for an increase for those pensioners and widows?

Mr. Parkinson: I confess that I have not come across that point before. I shall examine the matter and bring it to the attention of the chairman

Offshore Installations

Mr. Hanley: To ask the Secretary of State for Energy if he will explain the detailed procedures used to ensure that offshore installations are properly designed and maintained.

The Minister of State, Department of Energy (Mr. Peter Morrison): Every installation in our offshore waters must be in possession of a valid certificate of fitness. To obtain that, the owner submits to one of the independent certifying authorities information to enable an assessment of the design to be carried out. The certifying authority is required to carry out a major survey of the installation and its equipment before a certificate of fitness, which is valid for up to five years, can be issued. The authority must also carry out an annual survey.
Every offshore installation and its equipment is required, under current regulations, to be properly maintained.

Mr. Hanley: Clearly, each of the steps that my right hon. Friend has set out is vital in trying to maintain safety. Can he tell the House when the technical investigation that he has set in motion over Piper Alpha is likely to be completed?

Mr. Morrison: The technical investigation began almost immediately after we had announced it, which was shortly after the disaster. A lot of work has already been done and a number of people—about 90—have been interviewed. However, it must be said that some of the evidence is at the bottom of the seabed, and hence that will dictate the speed at which the investigation can proceed. However, it is the intention of those conducting that investigation to proceed as fast as they practicably can.

Mr. Prescott: The Secretary of State has said that safety is the first priority in the North sea. Can the right hon. Gentleman explain why the Department's report into the 1984 explosion on the Piper Alpha rig is now to be made available to the inquiry, but not available to those who have worked on that rig since 1984? What action is he now taking to reverse the decision to withdraw funds from the Institute of Oceanographic Sciences, which is a world authority on wave effects and oil rig and metal fatigue, the study of which are essential to safety in the North sea?

Mr. Morrison: The hon. Gentleman has heard on many occasions that the 1984 report will be made available to Lord Cullen. My right hon. Friend the Secretary of State and I said the same when we met the trade unions. It will be for Lord Cullen to decide whether to publish it, but my


right hon. Friend has written to him to make the points that the trade union delegation—which approached the matter in a constructive manner last week—made to my right hon. Friend and myself. The hon. Gentleman will appreciate that the Institute of Oceanographic Sciences is a matter for my right hon. Friend the Secretary of State for Education and Science

Oral Answers to Questions — THE ARTS

Business Spending

Mrs. Virginia Bottomley: To ask the Minister for the Arts, if he will make a statement on the progress of his policy to promote business spending on the arts.

The Minister for the Arts (Mr. Richard Luce): I was glad to participate in the launch of the business in the arts scheme by the Association for Business Sponsorship of the Arts last week. I shall be supporting it with £25,000 for each of the first two years. It joins the already successful business sponsorship incentive scheme in promoting business spending and practical help for the arts.

Mrs. Bottomley: As a member of the Association for Business Sponsorship of the Arts, I welcome my right hon. Friend's new initiative and his encouragement of partnership between business and the arts, which has led to the development of high-quality art. Will my right hon. Friend outline the objectives of the new scheme? What steps will he take to spread further information about it?

Mr. Luce: I am grateful to my hon. Friend, who has continued to give encouragement to business support for the arts. The purpose of the scheme, which is organised independently by the Association for Business Sponsorship of the Arts, is to complement and supplement sponsorship and donations from business to the arts by giving practical support by the provision of expertise, which many businesses in the arts world and arts organisations will welcome most warmly, the loan of people with particular expertise in specific areas, and generally to help to provide training for people in the arts world in the organisation of their businesses. I am glad to say that eight businesses have come in as sponsors, and I have made a Government contribution to this exercise.

Mr. Robert Sheldon: I welcome any business spending on the arts, but will the right hon. Gentleman consider the reverse aspect—business-spoilation of the arts? I am referring to the sale of the Lyceum theatre, which is a disgraceful business. Will the Minister ensure that he investigates this matter thoroughly with a view to ending this shameful episode in the history of the Lyceum and gets it restored as a proper theatre in London?

Mr. Luce: I welcome the fact that the right hon. Gentleman supports more business spending and support for the arts world. I understand the concern and anxieties that have been expressed by many people in the London arts world about the future use of the Lyceum theatre. It is, of course, principally the responsibility of my right hon. Friend the Secretary of State for the Environment, with whom I am presently in touch. The right hon. Gentleman will be aware that this is a complex problem and that it is not straightforward. There are certain obligations that the residuary body must discharge to the London ratepayers. Nevertheless, I am keeping a close interest in this matter.

Mr. Jessel: Does my right hon. Friend agree that the 50-fold increase in business sponsorship of the arts from £600,000 in 1976 to £30 million in 1987 is a tremendous success story, which has benefited audiences, artists and sponsors alike?

Mr. Luce: My hon. Friend is absolutely right It is interesting to note that the business sponsorship incentive scheme has now generated, as a result of the awards that we shall announce this week, £20 million of additional money for the arts. We now have 770 first-time sponsors as a result of the scheme and all the evidence suggests that the vast majority of those sponsors wish to support the arts for a long time.

Mr. Fisher: Returning to the question asked by my right hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon), why has the Minister for the Arts not spoken out about the Lyceum before? Everyone else has—the Arts Council, the Theatres Trust—but there has been a deafening silence from the Minister on this subject. Will he now approach the London Residuary Body and his right hon. Friend the Secretary of State for the Environment and urge them to do what they have the power to do and use their discretion to consider some of the other bids, which would preserve this great theatre as a theatre?

Mr. Luce: I have, of course, retained an interest in this problem, but, as I have already told the House, it is not my direct responsibility. It is the responsibility of my right hon. Friend the Secretary of State for the Environment. He has certain obligations, and so does the London Residuary Body. Those obligations are laid down and clearly stated. My right hon. Friend has obligations towards the ratepayers of London. All these factors must be taken into account. I made my position clear in answer to the earlier question.

Mr. Cormack: Is my right hon. Friend aware that his sympathy, which was evident in his reply to the last question and to that of the right hon. Member for Ashton-under-Lyne (Mr. Sheldon), will be much appreciated? I express the hope that he will be able to persuade our right hon. Friend that the theatre should be saved.

Mr. Luce: I am grateful to my hon. Friend, who retains a close interest in all these subjects. I should remind him and the House that this is not a straightforward issue. There are many complex aspects to it. As I understand it, an appeal is pending with regard to whether Mecca will continue to have responsibility for the Lyceum. All these factors must be taken into account

Merseyside Arts

Mr. Wareing: To ask the Minister for the Arts if he will call for an urgent report from the Arts Council on the funds allocated to Merseyside Arts.

Mr. Luce: I see no reason to intervene in this way between the Arts Council and Merseyside Arts.

Mr. Wareing: I am sure that all who are engaged in the arts in Merseyside will be saddened by that answer. I hope that the Minister will review it. Is he aware that. over the next three years there will be an estimated reduction of 7½ per cent. in the income that Merseyside Arts receives from


the Arts Council? Taking into account the slashing of local government grants from central Government, which makes it difficult for local government to make up the difference, and the abolition of the community programme, which affects many people in the arts on Merseyside, Merseyside Arts will be in for real touble. Does the right hon. Gentleman not realise that, in an area of declining resources, his answer will come as a blow?

Mr. Luce: Merseyside Arts will receive £1,100,000 worth of resources from the Arts Council. It is for the Arts Council to decide how it distributes its resources between the various regional organisations. Merseyside Arts is fourth highest per capita in terms of the amount of resources that it receives. The hon. Gentleman, who is interested in these things in Liverpool, will realise that additional resources are earmarked through the Arts Council to help all the regions of this country. They include incentive funding and extra help for touring. I hope that the Merseyside area will benefit from that.

Mr. Rathbone: In the context of the arts on Merseyside, will the Minister take this opportunity to welcome the opening of the Tate of the North in Liverpool, which is a magnificent extension of the Tate's activities, which are already well established in London?

Mr. Luce: I warmly respond to what my hon. Friend has said. This is a good example of how, by spreading our national activities outside London, we bring advantage to many parts of the country. The Tate of the North, and the vast range of other arts facilities in Liverpool and Merseyside, show the enormous scope that exists for the authorities in Liverpool to exploit this opportunity and attract more tourists, thereby earning more money for the arts organisations.

Mr. Speaker: I call Question No. 51.

Mr. Campbell-Savours: What about Question No. 48, Mr. Speaker?

Mr. Speaker: I saw the hon. Gentleman in his place, but I had notification that he had withdrawn this question. I believe that that was the Minister's impression, too.

Mr. Campbell-Savours: I do not know what your Office was told, Mr. Speaker, but I have not withdrawn it.

Mr. Speaker: If that is so, perhaps the Minister would agree to answer Question No. 48

National Theatre

Mr. Campbell-Savours: To ask the Minister for the Arts if he will establish an inquiry into production costs at the National Theatre.

Table showing sponsorships of and donations to the arts in excess of £1 million since January 1988


Organisation
Donor
Amount
Date of announcement
Purpose


South Bank Programme
British and Commonwealth Holdings (sponsorship)
£1 million (over 5 years)
January 1988
Music


Tate Gallery
Anonymous
US$6·5 million
20 June 1988
To set up American Fund for Tate Gallery


National Gallery
Mr. Walter Annenberg, KBE
£2·85 million
22 June 1988
Restoration of Impressionist and post-Impressionist rooms

Mr. Luce: The Arts Council evaluates the work of its clients on a regular basis, and I see no need to intervene. Assessments take account of all aspects of the National Theatre's performance—artistic, financial and managerial.

Mr. Campbell-Savours: If the costs of the National Theatre are escalating and its grant is cut, as it was in real terms this year, how can it afford to pay proper wages and salaries to all its employees? Will the Minister ensure that next year the National Theatre is given enough grant to ensure that those people are properly remunerated?

Mr. Luce: For the first time in its history the National Theatre is entitled to make arrangements with the Arts Council for three-year funding, which gives it a solid base upon which to plan in the long term. It has excellent management, an excellent artistic director, an excellent administrator and an excellent board, which has authority over the progress of the theatre. They are doing their best to raise resources, not just from Government, but from the private sector. The more they can do that, the more they will strengthen their affairs in the long term. In addition, they are entitled to incentive funding, if they qualify, and to extra funds for touring the country, which should bring benefits to them as well as to the regions

Donations

Mr. David Martin: To ask the Minister for the Arts what information he has about donations to the arts from private or corporate sources in excess of £1 million in the six months to the end of June.

Mr. Luce: I am extremely grateful to all benefactors of the arts. I shall circulate a list in the Official Report.

Mr. Martin: Will my hon. Friend confirm that in the past month there have been four donations of more than £1 million each? Does it not show that interest and investment in this form of funding for the arts is thriving?

Mr. Luce: My hon. Friend is right. In one week in early July alone the arts received £7 million of support by way of donations or sponsorship. That is a clear demonstration of the amount of support and help that goes to the art—

Mr. Allen: It is a pity that that money did not go to the CTCs.

Mr. Luce: It would be very good news if Opposition Members would welcome the process and encourage those who wish to help the arts.

Following is the list:

Organisation
Donor
Amount
Dale of announcement
Purpose


Victoria and Albert Museum
Mr. T.T. Tsui
£1·25 million
20 June 1988
To create new gallery of Chinese Art and Design


BAFTA
Shell (sponsorship)
£3 million
12July 1988
Various projects

Oral Answers to Questions — CIVIL SERVICE

Parliamentary Answers

Mr. Dalyell: To ask the Minister for the Civil Service if, pursuant to his reply of 4 July, Official Report, column 730, he will make it his policy, when answering a parliamentary question to the effect that he has nothing to add to previous replies, to indicate the precise Hansard reference for the answer or answers which provide the information requested.

The Minister of State, Privy Council Office (Mr. Richard Luce): I shall continue to abide by the conventions of the House.

Mr. Dalyell: Instead of pretending that questions on Westland have been answered, when they certainly have not, would it not be better for our country, and helpful from the point of view of the Commissioner going to Europe, if Ministers finally admitted that at column 657 on 27 January 1986 the Prime Minister caused much of this trouble by telling an indispensable lie to the House of Commons?

Mr. Speaker: Order. I ask the hon. Gentleman to withdraw that allegation about the Prime Minister.

Mr. Dalyell: I believe that there is cynical corruption involved in this—

Mr. Speaker: Order. I ask the hon. Gentleman to withdraw those words.

Mr. Dalyell: The words were extremely carefully chosen—

Mr. Speaker: Order. If the hon. Gentleman does not obey the Chair I shall be forced to name him, and I should be very reluctant to do that. I give him the opportunity to withdraw the allegation that the Prime Minister lied to the House.

Mr. Dalyell: The truth of the matter is that Parliament has been insulted—

Mr. Speaker: Order. If the hon. Gentleman is not prepared to withdraw those words, I shall be forced to name him. I give him one final chance.

Mr. Dalyell: I do not wish to embarrass you, Mr.Speaker. I am not asking for a final chance. I would not have said those words unless I meant them—

Mr. Speaker: Order. I name Mr. Tam Dalyell.

The Lord President of the Council and Leader of the House of Commons (Mr. John Wakeham): I beg to move,
That Mr. Tam Dalyell be suspended from the service ofthe House.

Question put:—

The House divided: Ayes 180, Noes 28.

Division No. 440]
[3.24 pm


AYES


Adley. Robert
Hannam, John


Alison, Rt Hon Michael
Hargreaves, Ken (Hyndburn)


Arbuthnot, James
Harris, David


Arnold, Jacques (Gravesham)
Haselhurst, Alan


Atkinson, David
Hayward, Robert


Baker, Nicholas (Dorset N)
Heathcoat-Amory, David


Barnes, Mrs Rosie (Greenwich)
Heseltine, Rt Hon Michael


Beaumont-Dark, Anthony
Hicks, Robert (Cornwall SE)


Bennett, Nicholas (Pembroke)
Higgins, Rt Hon Terence L.


Biggs-Davison, Sir John
Hind, Kenneth


Blackburn, Dr John G.
Hordern, Sir Peter


Blaker, Rt Hon Sir Peter
Howarth, Alan (Strat'd-on-A)


Boscawen, Hon Robert
Howarth, G. (Cannock &amp; B'wd)


Boswell, Tim
Hughes, Robert G. (Harrow W)


Bottomley, Mrs Virginia
Hunt, David (Wirral W)


Bowden, Gerald (Dulwich)
Hunt, John (Ravensbourne)


Bowis, John
Hurd, Rt Hon Douglas


Braine, Rt Hon Sir Bernard
Irvine, Michael


Brandon-Bravo, Martin
Jack, Michael


Brazier, Julian
Janman, Tim


Brown, Michael (Brigg &amp; Cl't's)
Jessel, Toby


Bruce, Ian (Dorset South)
Jones, Robert B (Herts W)


Bruce, Malcolm (Gordon)
Kellett-Bowman, Dame Elaine


Buck, Sir Antony
Key, Robert


Burns, Simon
King, Roger (B'ham N'thfield)


Burt, Alistair
Kinnock, Rt Hon Neil


Butcher, John
Knapman, Roger


Butler, Chris
Knowles, Michael


Carrington, Matthew
Knox, David


Channon, Rt Hon Paul
Latham, Michael


Chapman, Sydney
Lennox-Boyd, Hon Mark


Clark, Hon Alan (Plym'th S'n)
Lightbown, David


Clark, Dr Michael (Rochford)
Lloyd, Sir Ian (Havant)


Coombs, Anthony (Wyre F'rest)
Lloyd, Peter (Fareham)


Coombs, Simon (Swindon)
Lord, Michael


Cope, Rt Hon John
Luce, Rt Hon Richard


Cormack, Patrick
McCrindle, Robert


Cran, James
MacGregor, Rt Hon John


Currie, Mrs Edwina
MacKay, Andrew (E Berkshire)


Curry, David
McLoughlin, Patrick


Day, Stephen
Madel, David


Devlin, Tim
Malins, Humfrey


Dicks, Terry
Mans, Keith


Douglas-Hamilton, Lord James
Maples, John


Dover, Den
Marlow, Tony


Durant, Tony
Marshall, John (Hendon S)


Emery, Sir Peter
Marshall, Michael (Arundel)


Fallon, Michael
Martin, David (Portsmouth S)


Farr, Sir John
Maude, Hon Francis


Field, Barry (Isle of Wight)
Maxwell-Hyslop, Robin


Field, Frank (Birkenhead)
Miller, Sir Hal


Finsberg, Sir Geoffrey
Mitchell, Andrew (Gedling)


Fishburn, Dudley
Moate, Roger


Fookes, Miss Janet
Monro, Sir Hector


Forman, Nigel
Montgomery, Sir Fergus


Forth, Eric
Moore, Rt Hon John


Foster, Derek
Morrison, Sir Charles


Fowler, Rt Hon Norman
Morrison, Rt Hon P (Chester)


Gale, Roger
Moss, Malcolm


Garel-Jones, Tristan
Mudd, David


Gill, Christopher
Neale, Gerrard


Golding, Mrs Llin
Neubert, Michael


Goodson-Wickes, Dr Charles
Newton, Rt Hon Tony


Gow, Ian
Nicholls, Patrick


Grant, Sir Anthony (CambsSW)
Nicholson, Emma (Devon West)


Gummer, Rt Hon John Selwyn
Onslow, Rt Hon Cranley


Hamilton, Neil (Tatton)
Page, Richard


Hanley, Jeremy
Parkinson, Rt Hon Cecil






Patnick, Irvine
Stern, Michael


Portillo, Michael
Stewart, Allan (Eastwood)


Powell, William (Corby)
Stewart, Andy (Sherwood)


Price, Sir David
Stokes, Sir John


Rathbone, Tim
Sumberg, David


Redwood, John
Tapsell, Sir Peter


Ridley, Rt Hon Nicholas
Taylor, John M (Solihull)


Rossi, Sir Hugh
Taylor, Matthew (Truro)


Rost, Peter
Thorne, Neil


Ryder, Richard
Thurnham, Peter


Sackville, Hon Tom
Townsend, Cyril D. (B'heath)


Shaw, David (Dover)
Twinn, Dr Ian


Shelton, William (Streatham)
Waddington, Rt Hon David


Shephard, Mrs G. (Norfolk SW)
Wakeham, Rt Hon John


Shepherd, Colin (Hereford)
Wardle, Charles (Bexhill)


Shepherd, Richard (Aldridge)
Watts, John


Sims, Roger
Wheeler, John


Skeet, Sir Trevor
Widdecombe, Ann


Soames, Hon Nicholas
Wilshire, David


Spearing, Nigel
Wood, Timothy


Speller, Tony



Spicer, Sir Jim (Dorset W)
Tellers for the Ayes:


Spicer, Michael (S Worcs)
Mr. David Maclean and Mr. Kenneth Carlisle.


Stanbrook, Ivor





NOES


Allen, Graham
Jones, Barry (Alyn &amp; Deeside)


Barnes, Harry (Derbyshire NE)
McAllion, John


Bradley, Keith
Madden, Max


Brown, Nicholas (Newcastle E)
Patchett, Terry


Buchan, Norman
Pike, Peter L.


Campbell, Ron (Blyth Valley)
Redmond, Martin


Campbell-Savours, D. N.
Salmond, Alex


Corbyn, Jeremy
Skinner, Dennis


Cousins, Jim
Vaz, Keith


Cox, Tom
Wigley, Dafydd


Ewing, Mrs Margaret (Moray)
Williams, Alan W. (Carm'then)


Flannery, Martin
Wilson, Brian


Galloway, George



Heffer, Eric S.
Tellers for the Noes:


Hinchliffe, David
Mr. Bob Cryer and Mr. Bill Michie.


Janner, Greville

Question accordingly agreed to.

MR. Speaker: Order. I have to direct the hon. Member for Linlithgow (Mr. Dalyell) to withdraw in compliance with the order which the House has just made

Mr. Dalyell: On the point of order, Mr. Speaker [Interruption.]

Mr. Speaker: Order. I ask the House to allow me to deal with the matter. I have said to the hon. Member that he must now withdraw from the House, otherwise I shall have to take the next step.

Mr. Allen: On a point of order, Mr. Speaker.

Mr. Speaker: Order. The hon. Member for Linlithgow must withdraw from the House first.

Mr. Dalyell: On a point of order, Mr. Speaker.

Mr. Speaker: Order. I have said to the hon. Gentleman that he must now immediately withdraw from the House. The hon. Gentleman has been suspended from the service of the House. I am not going to give the hon. Gentleman a further chance on this matter. I must say to him that if I have to ask the Serjeant at Arms to lay a finger upon him, he will be suspended for the rest of this Session. That is a very serious step for me to take.

Mr. Dalyell: rose—

Mr. Speaker: Order. I must say to the hon. Gentleman that he must now leave at once, please.

The hon. Member withdrew.

Mr. Allen: On a point of order, Mr. Speaker. At what point does the authority of the Chair come into play when Ministers, after one year or two years, continually refuse to answer questions directly? Is it not your role, Mr. Speaker—

Mr. Speaker: Order. The whole House knows that that has absolutely nothing to do with me.

Mr. Allen: rose—

Mr. Speaker: Order. What I asked the hon. Member to do was to withdraw an unparliamentary phrase, which I would ask any hon. Member on either side of the House to do if he used it. The hon. Member was named for refusing to obey the Chair.

Mr. Allen: rose—

Mr. Speaker: Order. I am not taking any further points of order on this matter.

Civil Service Agencies

The following question stood upon the Paper:

Mr. Robert G. Hughes: To ask the Minister for the Civil Service what progress has been made in setting up the new Civil Service agencies.

The Minister of State, Privy Council Office (Mr. Richard Luce): As I told my hon. Friend the Member for Wokingham (Mr. Redwood) earlier today, we have now identified 29 activities, covering some 170,000 civil servants, which are immediate agency candidates. One of these was, as my right hon. Friend the Secretary of State for Transport, told the House earlier today, the vehicle inspectorate, which will be established as an agency from 1 August. The project manager is examining with Departments the rest of their activities, and I hope to make a report to the House later this year.

Mr. Hughes: Does my right hon. Friend accept that his statement will be very welcome to those of us who believe that these measures will improve the delivery of service in many areas, particularly the areas that have been announced today? Will he confirm that it is important that those services should be free to act in a commercial sense and that he should get on with the process as quickly as possible? When does he hope to be able to announce further services that will be put out in that way?

Mr. Luce: I am most grateful to my hon. Friend. Of course, the whole purpose of the exercise in devolution of responsibility within the Civil Service for the executive functions is to improve the delivery of Government services, to improve management still further than the already high standards and to get the best value for money. That can best be achieved by this objective. My hon. Friend will see that the framework agreement for the vehicle inspectorate is extremely thorough and very long and highlights a number of areas where there is substantial devolution of authority. That is very important indeed.
On the latter part of my hon. Friend's question, I can assure him that we are intending to make as rapid progress as we can. I have now identified three other areas which we expect to become agencies soon—the Companies Registration Office, the DHSS resettlement units and the employment services.

Mr. John Garrett: Will the Minister confirm that his officials are saying that up to three quarters of the entire Civil Service will be subjected to the agency arrangements, including DHSS local offices? How is he responding to the misgivings of the Treasury, publicly expressed, about the different pay rates for different agencies, and the misgivings of many hon. Members that under agency arrangements we shall no longer be able to call civil servants to account, particularly for some sensitive areas of public policy, such as the social fund?

Mr. Luce: The hon. Gentleman poses a number of questions. First, the project manager did state in evidence to the Treasury and Civil Service Select Committee that he felt that within 10 years at least three quarters of the Civil Service could have agency status established. I see no reason to quarrel with that figure. On the hon. Gentleman's second question, the DHSS, at the request of

my right hon. Friend the Secretary of State for Social Services, is being examined as a possible candidate for agency status. Thirdly, the hon. Gentleman will know that, through my right hon. Friend the Chancellor of the Exchequer, we are already developing a more flexible pay policy on recruitment and retention grounds. That is already evolving, irrespective of the agencies. The vehicle inspectorate document, which is fully published, shows that there is considerable devolution of responsibility. On accountability, at the end of the day the Ministers concerned are accountable to the House and that principle must remain firmly established.

Mr. Terence Higgins: Is my right hon. Friend aware that the Treasury and Civil Service Select Committee has now taken a great deal of evidence on the subject and hopes to report soon? Clearly, I cannot anticipate what the report may say. On a personal basis, may I say that the selection of the vehicle inspectorate as an example seems to be an appropriate one.

Mr. Luce: I am grateful to my right hon. Friend. When he publishes the report by the Treasury and Civil Service Select Committee, I can assure him that I and my right hon. Friends will study the findings carefully.

Mr. Giles Radice: Is it not the case that if there is to be such a dramatic change by the end of 10 years, it will have profound implications for democratic and parliamentary accountability, particularly for the role of Ministers, Members of Parliament, Select Committees and the Public Accounts Committee?

Mr. Luce: I know that the hon. Gentleman is taking a close interest in the matter in his role as a member of the Select Committee. I must strongly reiterate that Ministers will remain ultimately accountable. The nature of the responsibility between the Secretary of State for broad policy matters and the chief executive for day-to-day management matters has to be spelt out clearly in the framework document. That is clear in the document available for the vehicle inspectorate. At the end of the day, Ministers are accountable but it is open to Select Committees to invite the chief executive and other officials to give evidence to them.

Mr. Michael Heseltine: I welcome my right hon. Friend's statement, but does he agree that the heart of enhanced responsibility in the management of such agencies is that the managers should be recruited from the public and private sectors, that they should be recruited on contract and not on life terms and that, as long as the Treasury has control over the pay and conditions of the employees of the agencies, the concept of responsibility at which my right hon. Friend is driving still has a long way to go?

Mr. Luce: I respect my right hon. Friend's view, since he has had considerable experience in the subject and did a great deal during his time in office to help improve the management and resources of the Civil Service. I can confirm that, on the recruitment of chief executives and other officials, it is open to Secretaries of State in charge of the particular agency to recruit from outside the Civil Service if they so wish. If they think that it is more efficient that way they are entitled to do so, provided that there is fair and open competition. I agree entirely with my right hon. Friend that there are definitely advantages in having


fixed contracts in certain circumstances. That is what has happened for the vehicle inspectorate, where there is a three-year contract.
As for the Treasury and my right hon. Friend the Chancellor, if my right hon. Friend looks at the framework agreement for the vehicle inspectorate, he will see the extent of devolution of responsibility that has already been provided for the management of personnel, for resources and for the giving of performance-related pay, which is extremely important. It must be in the interests of the Treasury as well as that of the Government to obtain better value for money. That is the point of the agency process. It is in all our interests that it should succeed.

Mr. Robert Sheldon: All hon. Members will agree that we want value for money in all respects in these matters. Will the right hon. Gentleman accept that accountability to Parliament is the crucial test? The Prime Minister said that the agencies will be accountable to Parliament. The right hon. Gentleman's comments seem to have gone a little astray from the Prime Minister's remarks. Will he give a further assurance that accountability to the Public Accounts Committee, to the National Audit Office and to the Comptroller and Auditor General will remain unchanged?

Mr. Luce: I can give that assurance to the right hon. Gentleman without any equivocation. There is no doubt about it.

Sir Peter Blaker: Will the agencies have power to relocate staff outside London and the south-east of England, in so far as they are not already relocated, if relocation is considered desirable to save costs, for example?

Mr. Luce: I know of my right hon. Friend's interest in the matter. He may have noticed that my right hon. Friend the Paymaster General recently made a statement about the relocation of the Civil Service. Four out of five civil servants are already outside London. In terms of recruitment and retention, if Departments find it more beneficial to move civil servants to other regions, they will look seriously at the matter, and it should be regarded as a high priority.

Mr. Harry Barnes: Have there been full, free and frank discussions with the relevant Civil Service trade unions about this agency in the vehicle inspectorate? The matter should be discussed with the three other agencies that were referred to, and the 25 agencies that will follow.

Mr. Luce: I can give the hon. Gentleman an assurance that, in any case, if there is to be a suggested change in the terms and conditions of the Civil Service, there will be full and proper consultations with the Civil Service. The hon. Gentleman might like to know that, last Friday, the project manager for the next steps, Mr. Kemp, saw the trade unions to consult them about the next stages.

Mr. Nicholas Soames: Does my right hon. Friend agree that, as in the rest of the Civil Service, many benefits would accrue to the agencies were there to be a great more fluency in the coming and going between the public and private sectors? As my right hon. Friend has

already given an assurance in respect of new agencies, will he seek broadly throughout the Civil Service to have many more civil servants having experience in the private sector and vice versa?

Mr. Luce: My hon. Friend is absolutely right. We are looking at ways in which we can strengthen the interchange between the private sector and the Civil Service, not just by secondments but by other means. The establishment of these agencies will do quite a lot to strengthen that process. As I said earlier, we certainly will not exclude the possibility of chief executives being part of that process.

Mr. Max Madden: Will the Minister confirm that he does not propose full privatisation but an agency because of opposition to privatisation from the road haulage industry? Will he confirm that all trade unions representing the appropriate staff have been fully consulted? Are we to take it that "a more flexible pay policy" is a euphemism for the ending of nationally agreed pay rates?

Mr. Luce: The Governmenfs policy on privatisation has not changed as a result of the "next steps" policy. If a Minister decides that a particular function of his Department would be better carried out by means of privatisation, that must be his first priority. It is only when that is decided as not being the best process and the best next stage that an agency may be decided upon as the best move to strengthen the management of services. I simply reiterate that we have undertaken to consult trade unions whenever there are any proposed changes in terms and conditions. The project manager saw trade union leaders last Friday to talk about the next stages.

Mr. Peter Thurnham: Does my right hon. Friend agree that service to the public should be much improved if the Companies Registration Office were put on an agency basis? Is he aware of the long delays at present? On average they are 10 weeks, and, in the case of some Barlow Clowes documents, over 200 days.

Mr. Luce: It will be for my right hon. Friend the Secretary of State for Trade and Industry in due course to announce the timing, if he eventually decides to establish an agency, and how he envisages an improvement in services. My hon. Friend is right to stress the importance of the improved delivery of services. That is one of the major objectives of this exercise. It is interesting that, earlier today, my right hon. Friend the Secretary of State for Transport highlighted some examples of how the services of the vehicle inspectorate can be improved.

Dr. John Marek: Will the Minister confirm that standards of testing will be maintained in the long term, following the setting up of the agency? Secondly, will he confirm that the road haulage industry opposed privatisation due to escalating costs and therefore that the agency is not a first step towards privatisation? What guarantees can the Minister give staff wishing to transfer to or from the agency in the future? Finally, when the Minster refers to flexible pay, many of us assume that he means lower pay for people in the north, Scotland and Wales. Can he deny that?

Mr. Luce: The first two questions are principally for my right hon. Friend the Secretary of State for Transport, but my right hon. Friend is happy for me to stress that, with


regard to the vehicle inspectorate, the safety interest will remain paramount. It is important to confirm that. I also confirm that my right hon. Friend has no plans whatever to take the matter a stage further to privatisation. His first and immediate priority is the establishment of an agency.

Hospital Patients (Radiation Overdose)

Mr. John Hannam: (by private notice): To ask the Secretary of State for Social Services if he will make a statement on the radiation overdose given to patients receiving radiotherapy at the Royal Devon and Exeter hospital, Exeter.

The Parliamentary Under-Secretary of State for Health and Social Security (Mrs. Edwina Currie): The telecobalt machine at the Royal Devon and Exeter hospital was installed some years ago and is of a type commonly in use in the National Health Service to treat cancer patients. On 12 February 1988, a new cobalt source was installed as part of a routine service. Due to an error of calibration, the machine was then set to give a 25 per cent. higher dose of radiation. On 12 July 1988, staff dealing with patients drew attention to side effects in a small number of patients and the machine was checked. The error was immediately found and rectified. The machine is not itself faulty and continues in use.
Immediate steps were taken to identify the 153 patients who had been treated on the machine during this period. An independent assessor, Professor Charles Joslin of Leeds university, has been asked to give an opinion on each case. All the patients concerned are being called in this week and treated or counselled as necessary.
Exeter health authority has set up an inquiry drawing on the expertise of Professor Joslin, and an independent physicist called in at the authority's regional scientific officer, and the Health and Safety Executive. Their reports are expected to go to the health authority as soon as possible. I am satisfied that appropriate action has been taken and that patients should continue to have confidence in radiotherapy as a major lifesaving treatment both in Exeter and elsewhere.

Mr. Hannam: I and all hon. Members express sympathy to those facing terrible uncertainty as a result of this unfortunate error. Is my hon. Friend aware that there is great concern about the lack of a fail-safe check-up system for the recalibration of radiotherapy equipment? Should not the Health and Safety Executive give a clear specification of the requirements for such checks and the responsibility for such a system be placed on the health authority?
Finally, can my hon. Friend say to what extent the excess doses of radiation given to patients fell within the range of normal treatment practice elsewhere by other clinicians?

Mrs. Currie: On the last question, I am sure that my hon. Friend would not wish me to give a clinical view which might reflect on particular patients, but I am assured that much of what he has said is correct.
With regard to a fail-safe device, guidelines for inspections are set out in two sets of statutory regulations, both of which are accompanied by detailed guidance which builds on earlier similar guidance. I refer my hon. Friend to paragraph 7.22 of the guidance, which does not appear to have been followed in its entirety. We expect the Exeter inquiry to address this issue and I have asked the Health and Safety Executive to advise me further.

Mr. Matthew Taylor: Will the Under-Secretary of State confirm that all patients have been or will be contacted successfully and that there is no problem in identifying all concerned in this instance? Will she also confirm that all other machines which might be subject to similar errors will be checked and all steps taken to ensure that no such overdoses are taking place elsewhere and that none will occur in the future?

Mrs. Currie: Yes, we are not in any doubt about the nature of the error, the date on which it occurred or its duration. There is no doubt which patients have been affected, and they either have been or are being contacted. As to the second part of the hon. Gentleman's question, the output of the machines should be checked monthly, which is normal practice in National Health Service hospitals. I have asked the Health and Safety Executive to advise me further on the matter.

Sir Peter Emery: Will my hon. Friend accept that, while there is much concern about the matter, everybody in the locality has much praise for the work that the Royal Devon and Exeter hospital does? When 153 patients are involved, some of whom are young children, there is much concern. How is the division between clinical control and executive management supervision affected? It seems that a clinical decision was taken but that it was very difficult for the executive management to spot the problem.
Will my hon. Friend confirm that there will be an independent chairman of the inquiry? It has been suggested that the deputy chairman of Exeter health authority might be appointed. That would be a mistake, because somebody from outside Devon should be appointed to ensure that nothing is being hidden. Why has there been a delay of over 10 days from 12 July to date? Patients should have been notified; many of them learned about the problem only because of television. That must be a terrifying factor, that should never be allowed to happen again.

Mrs. Currie: Yes, I agree with much of what my hon. Friend says. I concur with my hon. Friend that radiotherapy machines save lives. There is no doubt that, had patients not been treated on them, the condition from which they were suffering could have been terminal. I understand that the equipment is the responsibility of the physicists, and that advice from an outside adviser who is a physicist has been called for by the health authority. As to the question of an independent chairman, the health authority has called immediately for an inquiry, and it is appropriate that the inquiry should be conducted within that framework. I have said that I expect the inquiry, through the regional health authority, to report to me with its recommendations.
As to the delay in notifying patients, I understand that the intention was first to obtain a judgment on cases, if at all possible, so that the patients could be reassured or offered further treatment if necessary. In my view—I think that my hon. Friend will share this view—notifying patients where there is cause for concern should be a top priority. I have asked my officials to advise me urgently on a possible standard procedure that we could offer to all health authorities, bearing in mind that patients should have as much information as possible to set their anxieties at rest. Patients should not hear about the problem from the press first.

Mr. Robin Maxwell-Hyslop: Can my hon. Friend tell me whether Professor Joslin's report will be published and when she is expecting that it will be available to hon. Members as well as to the public at large and, indeed, to the general practitioners who referred the patients to the Royal Devon and Exeter hospital in the first place, because they will obviously have the more intimate and day-to-day contact with the patients?

Mrs. Currie: I am advised that Professor Joslin is offering detailed clinical guidance, case by case, on all 153 patients treated by the machine. It would almost certainly not be appropriate for that information, which is confidential, to be published. He will, however, be making a report, as requested, to the health authority, and I expect it then to take a view about whether a summary of it may be made available. We certainly intend to learn from all the lessons.

Several Hon. Members: rose—

Mr. Speaker: Order. I remind those Opposition Members who were rising that this matter specifically refers to the Royal Devon and Exeter hospital. I shall call the hon. and learned Member for Leicester, West (Mr. Janner), but it is not about Leicester.

Mr. Greville Janner: No, Mr. Speaker, but it could be.
Has the Minister taken legal advice as to whether or not a prosecution would be permitted of the Royal Devon and Exeter hospital, or any other where such a hazard has been caused not only to people at work but to those who are affected by its undertaking? If such a move were excluded by Crown immunity, it is not time that the rule was changed?

Mrs. Currie: It is far too early to answer questions such as that, as the hon. Gentleman, who is a lawyer, knows perfectly well. Responsibility for the safety of this type of equipment both for patients and for staff lies with the Health and Safety Executive in the first instance. I have asked it to check that the guidance which says that the equipment should be checked monthly is being followed and to advise me whether any further action is necessary.

Miss Emma Nicholson: On Saturday, I had an opportunity to see some of my constituents, who are patients affected by the higher than anticipated doses of radiation. They have asked me to convey to the Minister their genuine confidence in the work of the consultant and the hospital technicians, and their extreme confidence that ameliorative action will be taken. Although this incident has added to their anxiety about their disease treatment, they are comfortable with the action that is now being taken.

Mrs. Currie: I am grateful to my hon. Friend. That is certainly the message that I have had, too. Many of the patients being cared for in this way were receiving palliative treatment—in other words, low dosages anyway—which was designed to make them more comfortable. I understand that a number of the other patients were taking part in a trial of low dosage treatment and, therefore, my anxieties are somewhat relieved.

Mr. Ron Leighton: Will the Minister deal with the advisability of having a chairman for the inquiry from outside that health authority?

Mrs. Currie: Our procedure, which we have followed on previous occasions when there has been any cause for concern, is to ask the health authority to carry out an inquiry. In this case, the health authority has already decided to do so and we will wait to see what it proposes to do and whether any action is necessary.

Mr. Tony Speller: I must own that the tenor of the impressions given by my hon. Friends suggests that a bucket of whitewash is adjacent already. I wish to speak for one constituent who had a course of treatment during May. At that time she was told, "No, you never get burned by this treatment." She was burned to the extent of needing in-patient treatment in the South Molton hospital. At that stage, someone should have said, "If people are not normally burned, why has this woman been burned?"
I must state that, at 2.30 this afternoon, this lady had not had any notification since the health authority discovered the problem a fortnight ago. I am glad that the press got hold of this leak some time after the authority discovered the problem. What happened was that this lady heard about the too high dosages of radiation on the radio. She then telephoned the hotline number. She was told, "If you have not heard, you are not concerned." She therefore relaxed. The next day, on the television, she saw a picture of the apparatus, which she recognised, so she telephoned again. She was told, "Yes, you are concerned." Just imagine the feeling of this poor person.

Mr. Speaker: Briefly, please.

Mr. Speller: This is an important matter, at least to us locally. Quite frankly, the surgeon or the chap who appeared on the television gave what can only be described as a flip collection of answers, including such answers as, "Some people have asked for higher dosages because they get better quicker." There is a whiff of scandal here, which I hope we shall not try to cover up.

Mrs. Currie: I hear what my hon. Friend has said, and he knows me well enough to be aware that there is never any whitewash around when I am in charge of something. As I said a moment ago, it is my firm view that patients should be contacted with as much information as possible, and as soon as possible. I understand why that was not

done in the case of the Exeter health authority—it has been trying hard to get a proper clinical view for each patient before they are contacted. That is a reasonable thing to try to do, but in the circumstances I hope it will ensure, and indeed that we can develop procedures in future to ensure, that patients are well informed in advance.
I cannot comment further on the clinical advice that my hon. Friend's constituent was given, except to say that it is quite normal to have mild side effects from treatment of this sort. If it is to cure the cancer, it sometimes causes other damage as well.

Ms. Harriet Harman: Does the hon. Lady recognise that people are worried not just because a mistake of this nature was made, but that it remained undetected for so long? Will she ensure that all hospitals follow the good practice that is followed in some—and which is not in the regulations—which is that machines are checked on the basis of output rather than simply by calculating what the machine should be sending out? That check should be made every month and should be made by two physicists.
As the district health authority has admitted liability, will the hon. Lady ensure that compensation for suffering and anxiety is speedily assessed and paid? Will she tell the House how long ago the machine in question was installed?

Mrs. Currie: In connection with the last question, I cannot answer in detail, but I know that the machine has been in use for some time. lt has been in use in Exeter for a number of years. The answer to the first question is yes.
The answer to the second question is yes, and I shall simply read into the record paragraph 7.22 of the guidance which goes out with the statutory regulations. It says:
A qualified and experienced radiation physicist should be made responsible for ensuring that all gamma and beta-ray apparatus is checked for correct operation and applicability of the output data in use, at least once every month".
That has been the guidance for a very long time and we would expect the health authority to know about it.
In answer to the third question about compensation, I think our first job is to look after patients' health and we can concern ourselves with other issues, if necessary, later.

European Commission (Appointments)

Mr. Nigel Spearing: I beg to ask leave to move the Adjournment of the House, under Standing Order No. 20, for the purpose of discussing a specific and important matter that should have urgent consideration, namely,
the appointments by Her Majesty's Government to the Commission of the European Economic Community.
The matter is specific, as these appointments are the responsibility of a Minister of the Crown and specified under a treaty to which both Government and Parliament are currently subject. They therefore arise not from prerogative powers, but from obligations specifically entered into by the House by Act of Parliament.
The appointments are of great public importance as the holders of those offices are thought to have significant powers and influence over the nature and range of legislation that can be applied indirectly to both people and Government of the United Kingdom—even, on occasion, against their express desires. It thus follows that the procedures relating to such appointments, the role of the Commissioners, the proven record of public service and the qualities of the person so nominated, transcend the normal practices relating to domestic appointments. Until recently, that principle appears to have been recognised by successive Governments, but it is now in doubt.
In addition, in respect of one of the nominees, there have been press and other reports relating to the fourth report of the Defence Select Committee, House of Commons paper for the 1985–86 Session, which in paragraph 177 referred to conduct which was "especially reprehensible", and in paragraph 179 to
an outrageous way in which to treat a Law Officer of the Crown".
The matter is urgent because, while no formal decision on the Adjournment of the House had yet been made, the time available for debate on the matter is likely to be limited to two or three days, within which both the probability and form of debate by other means are not assured when weighed against the importance of the topic.
As the guardian of the role of the House of Commons, Mr. Speaker, you are thus instructed to be mindful of the responsibilities of Members to debate matters of urgent public importance, especially those which both assert and put into practice the accountability of Ministers of the Crown, and thus their accountability to those who sent us here.

Mr. Speaker: The hon. Gentleman asks leave to move the Adjournment of the House, under Standing Order No. 20, for the purpose of discussing a specific and important matter that he believes should have urgent consideration, namely,
the appointments by Her Majesty's Government to the Commission of the European Economic Community.
As the hon. Gentleman knows, I have to decide, when making my judgment on these matters, whether an application meets the criteria laid down under Standing Order No. 20.
I listened with care to what the hon. Gentleman said, but I regret that I do not consider that the matter he has raised is appropriate for discussion under Standing Order No. 20. I cannot, therefore, submit his application to the House.

Several Hon. Members: rose—

Mr. Frank Dobson: On a point of order, Mr. Speaker, I would certainly not wish to dispute your view that the matter that my hon. Friend the Member for Newham, South (Mr. Spearing) raised merits taking precedence over other business, but have you had any representations from the Prime Minister about a desire, or even a lack of a desire, on her part to make a statement about the rather remarkable circumstances in which a right hon. and learned Member of the House, who resigned in disgrace from the Cabinet, is now being put forward as one of this country's nominees to serve on the European Commission? As you know from events earlier today, Mr. Speaker, there are deep and bitter feelings about the whole question of the Westland scandal and the role of Ministers in it—[Interruption.]

Mr. Speaker: Order. I have to say to the shadow Leader of the House that the application to which I have just listened was not concerned with that matter. It was concerned with the appointments—both appointments—to the European Commission.

Mr. Dobson: I was going to go on to say, Mr. Speaker, that there is most legitimate concern in this House about what happened over the Westland affair and whether significant people involved in that affair are, in effect, getting pay-offs for keeping quiet about those events. My right hon. and hon. Friends are especially concerned about the difference between the treatment of the person whom it is proposed should replace Lord Cockfield and that of Stanley Clinton Davis, a former Member of the House, a man of the highest integrity who served this country well in his post as a commissioner, and who appears to have been dispensed with entirely on the basis of personal spite on the part of the Prime Minister. In those circumstances, it is only right and proper that she who makes the appointments should come to this House to explain what she is up to—

Several Hon. Members: rose—

Mr. Speaker: Order. If hon. Members look at the Order Paper, they will see that we have a very heavy day and perhaps even a heavy night ahead of us—[Interruption.] Allow me to answer this question. I can deal only with matters which are my responsibility. I have not received any notification from the Prime Minister that she wishes to make any statement. [Interruption.] Order. However, the House knows that she will be present here tomorrow and the House knows equally that there are other opportunities this week when this matter could be raised if hon. Members think that it is important.

Mr. Tony Marlow: On a point of order, Mr. Speaker. May I say briefly how totally devastated and baffled we are on this side of the House that the hon. Member for Newham, South (Mr. Spearing) should wish to continue the reign of Lord Cockfield in Brussels? Having said that, Mr. Speaker, may I also say how baffled we are that we have just received a lecture on parliamentary morality from the Shadow Leader of the House some 10 or 15 minutes after a vote in this House to sustain your authority for which the hon. Gentleman was not present? That must be almost without precedent. The hon. Gentleman's predecessor, the right hon. Member for Blaenau Gwent (Mr. Foot), is here and he can tell us


whether it is without precedent. It is my belief that usually when there is a vote in this House to sustain your authority, not only the Leader of the Opposition and the Opposition Chief Whip, but the Shadow Leader of the House, also comes to your support. We on this side feel that this is totally reprehensible and quite disgraceful.

Mr. Speaker: I hope that the whole House will always support the Chair in these difficult matters. [Interruption.] Order. I cannot see any profit in dealing further with this matter because they are not questions that I can answer—

Several Hon. Members: On a point of order, Mr. Speaker.

Mr. Speaker: Order. If it is on a different issue, I will try. Mr. Winnick.

Mr. David Winnick: As you will know, Mr. Speaker, there is concern that power and sovereignty are being taken from this House to the European Commission, and I should have thought that that matter would concern you. As power and sovereignty are being transferred more and more from this House to Brussels, are we not now in the ironic position where the Government's appointments of commissioners are not even being debated in prime parliamentary time?
You said a moment ago, Mr. Speaker, that this issue could be raised with the Prime Minister tomorrow, but what about the possibility of having a debate and the necessity of being able to put forward points of view? It is not just a question of the very controversial appointment of the right hon. and learned Member for Richmond, Yorks (Mr. Brittan)—that may well be a matter for debate—or of what is, in my view, the justified dismissal of Lord Cockfield, the Euro-fanatic; it is also about the right of this House to be able to debate who should be our commissioners in Brussels.

Mr. Speaker: Obviously the hon. Gentleman was not here last Thursday when the Leader of the House announced the business for this week—[Interruption.] Well, it is not for me to give hints to hon. Members, but there is an opportunity on the summer Adjournment motion to debate this very matter.

Mr. Alastair Goodlad: Further to the point of order, Mr. Speaker. Is it not the case that any suggestion from Opposition Members that my right hon. and learned Friend is anything other than a man of the highest integrity and ability is not only out of order but untrue?

Several Hon. Members: rose—

Mr. Speaker: Order. The whole House will agree that the right hon. and learned Member for Richmond, Yorks (Mr. Brittan) is a man of the highest integrity and that there has never been any suggestion to the contrary.

Mr. Bob Cryer: On a point of order, Mr. Speaker. You announced that in the business of the House there will be opportunities to raise this issue this week, such as in the Consolidated Fund debate and in the summer Adjournment debate, but I would point out that those opportunities will not provide decisions. Is it not one important aspect of this—I seek your guidance, Mr. Speaker—the fact that a decision has been announced by the Prime Minister? We should like to know in what way this House can reverse that decision if it is necessary to do

so, bearing in mind that this is the last week before we reassemble on 18 October. Presumably, if this House passed a resolution reversing that decision and appointing other persons, that decision of this House would be superior to the patronage doled out by an ever-grateful Prime Minister to the right hon. and learned Member for Richmond, Yorks (Mr. Brittan).

Mr. Speaker: As I understand it, the appointments do not take effect until January and in any case, if the hon. Gentleman really wishes to push this matter, he could make the case that we need not adjourn.

Mr. Anthony Beaumont-Dark: In the 40 years up to 1984, 12 Members of this honourable House were suspended on Mr. Speaker's instructions; in the past five years 14 Members—now 15 Members—have been suspended. I believe that the Select Committee on Procedure is now looking into the discipline of the House. Do you not agree, Mr. Speaker, that we have now come to a stage when, often at the end of a parliamentary Session, because suspension means little, any hon. Member who is suspended today, tomorrow, on Wednesday or on Thursday is not really suspended at all, and the abuses of privileges of this House will go on and on? As we are getting to a stage where every day is more like changing guard at Buckingham Palace, wondering who is going to go next, should not we, as a House, decide that people who wish to exercise their privilege to be suspended, should be so for a Session at least, possibly for a Parliament, since otherwise this House gets into great disrepute?

Mr. Jonathan Aitken: rose—

Mr. Speaker: Is it on the same matter?

Mr. Aitken: Yes, Mr. Speaker. On the point raised by my hon. Friend the Member for Birmingham, Selly Oak (Mr. Beaumont-Dark), may I appeal to you not to suspend the hon. Member for Holborn and St. Pancras (Mr. Dobson), because he has made a most important announcement of a new leadership race in the Opposition—first because of the Leader of the Opposition having been asleep during the endless arguments about the sovereignty of this Parliament and, secondly, because he completely missed his chance in the Westland debate? We must not be allowed to exhume all those issues on the bogus issue that there is something wrong with my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan).

Mr. Speaker: Let me deal with the question that was put to me about discipline in this House. I hope that it was a slip of the tongue for the hon. Member for Birmingham, Selly Oak (Mr. Beaumont-Dark) to say that it is a "privilege" to be named in this place. It is a serious step. I hope that the whole House will always uphold the authority of the Chair. If that does not happen, anarchy becomes the order of the day, and that is not the way in which we can conduct our affairs.

Mr. Dobson: Further to the point of order, Mr. Speaker. Could you confirm that it is not a matter for you as Mr. Speaker if someone lies to this House, but that it is a matter for you if someone else says that they have lied?

Mr. Speaker: I confirm to the House that we do not use unparliamentary phrases, words or allegations about each


other. The whole House knows the reason why the hon. Member for Linlithgow (Mr. Dalyell) was suspended today.

STATUTORY INSTRUMENTS, &c.

Mr. Speaker: With the leave of the House, I propose to put together the 14 motions relating to statutory instruments.

Motion made, and Question put forthwith pursuant to Standing Order No. 101(5) (Standing Committees on Statutory Instruments, &amp;c).

Value Added Tax

That the Value Added Tax (Special Provisions) (Amendent) Order 1988 (S.I., 1988, No. 1124), dated 28th June 1988, a copy of which was laid before this House on 29th June 1988, be approved.

URBAN DEVELOPMENT

That the Tyne and Wear Development Corporation (Vesting of Land) (Various Local Authorities) Order 1988, dated 15th June 1988, a copy of which was laid before this House on 22nd June 1988, be approved.

URBAN DEVELOPMENT

That the Tyne and Wear Corporation (Vesting of Land) (Borough of Sunderland) Order 1988, dated 15th June 1988, a copy of which was laid before this House on 22nd June 1988, be approved.

URBAN DEVELOPMENT

That the Tyne and Wear Development Corporation (Vesting of Land) (British Shipbuilders and British Steel Corporation) Order 1988, dated 23rd June 1988, a copy of which was laid before this House on 29th June 1988, be approved.

URBAN DEVELOPMENT

That the Black Country Development Corporation (Vesting of Land) (British Steel Corporation) Order 1988, dated 23rd June 1988, a copy of which was laid before this House on 29th June 1988, be approved.

URBAN DEVELOPMENT

That the Tyne and Wear Development Corporation (Vesting of Land) (Port of Tyne Authority) Order 1988, dated 30th 1988, a copy of which was laid before this House on lst July 1988, be approved.

URBAN DEVELOPMENT

That the Tyne and Wear Development Corporation (Vesting of Land) (British Coal Corporation) Order 1988, dated 28th June 1988, a copy of which was laid before this House on lst July 1988, be approved.

URBAN DEVELOPMENT

That the Black Country Development Corporation (Vesting of Land) (Borough of Walsall) Order 1988, dated 27th June 1988, a copy of which was laid before this House on lst July 1988, be approved.

URBAN DEVELOPMENT

That the Black Country Development Corporation (Vesting of Land) (Borough of Sandwell) Order 1988, dated 27th June 1988, a copy of which was laid before this House on lst July 1988, be approved.

URBAN DEVELOPMENT

That the Black Country Development Corporation (Vesting of Land) (British Railways Board) Order 1988, dated 30th June 1988, a copy of which was laid before this House on lst July 1988, be approved.

URBAN DEVELOPMENT

That the Tyne and Wear Development Corporation (Vesting of Land) (Tyne and Wear Passenger Transport Executive) Order 1988, dated 27th June 1988, a copy of which was laid before this House on lst July 1988, be approved.

URBAN DEVELOPMENT

That the Black Country Development Corporation (Vesting of Land) (General) Order 1988, dated 27th June 1988, a copy of which was laid before this House on lst July 1988, be approved.

URBAN DEVELOPMENT

That the Black Country Development Corporation (Vesting of Land) (Central Electricity Generating Board) Order 1988, dated lst July 1988, a copy of which was laid before this House on 4th July 1988, be approved.

URBAN DEVELOPMENT

That the Tyne and Wear Development Corporation (Vesting of Land) (City of Newcastle upon Tyne) Order 1988, dated 15th June 1988, a copy of which was laid before this House on 22nd June 1988, be approved.—[Mr. Lennox-Boyd.]

Question agreed to.

COPYRIGHT, DESIGNS AND PATENTS BILL [MONEY] (No. 2)

Queens Recommendation having been signified—

Resolved,
That, for the purposes of any Act resulting from the Copyright, Designs and Patents Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of any increase attributable to the Act in the sums so payable by government departments in respect of Crown use of patents and designs.—[Mr. Lennox-Boyd.]

Orders of the Day — Copyright, Designs and Patents Bill [Lords]

As amended (in the Standing Committee), considered.

Ordered,
That the Bill be considered in the following order: Clause 205, Clause 27, new Clauses, Clauses 1 to 26, Clauses 28 to 204, Clauses 206 to 294, new Schedules, Schedules.—[Mr. Butcher.]

Mr. Michael Foot: On a point of order, Mr. Speaker. In connection with the selection of amendments and clauses for debate, can you tell the House whether there has been an alteration to what was put on the board earlier about the clauses to be selected? There is a widespread belief that there should be a fresh debate on the general subject of the rights of journalists and writers. I hope that the new clause put down by my hon. Friends will be selected for debate. If that is the case, I hope that you will tell the House.

Mr. Speaker: I do not know which new clause the right hon. Gentleman is speaking about, but I think I am right in saying that the new clause put down by his hon. Friends has been selected for debate.

Mr. Tony Blair: Further to that point of order, Mr. Speaker. I am pleased to say that it has been selected for debate and will be debated

Clause 205

Design right

Mr. Blair: I beg to move, amendment No. 224, in page 93, leave out lines 12 to 19.

Mr. Speaker: With this it will be convenient to consider the following amendments: No. 274, in page 93, leave out lines 17 to 19.

No. 225, in clause 228, page 101, line 17, leave out
'in the last five years of the design right term'.

No. 226, in page 101, line 19, at end insert—

'(a) In respect of an article which is manufactured as a replacement part.
(b) In any other case in the last five years of the design right term.'.

No. 328, in page 101, line 19, at end insert—
'(1A) Where a design right subsists in:—

(i) features of shape or configuration which enable an article to be connected to, or placed in, around or against, another article so that either article may perform its function.
(ii) features of shape or configuration dependent upon the appearance of that of which the article is intended to form part,
any person is entitled as of right to a licence to do during the design right term any act which would otherwise infringe the design right.'.right.'.

No. 227, in page 101, line 33, at end add—
'(5) In this section an article is manufactured as a replacement part if it is primarily made for use as a replacement for a thing which forms part of, or functions in connection with, another article.'.

Mr. Blair: I think it is fair to say that at times the Bill evoked an interest inside the House that was almost in inverse proportion to the interest outside the House. We have been

subjected to the most intense lobbying and hardly a sector of British industry that will be affected by the Bill has not clearly made known its views to us.
The difficult balance that we have to strike in the Bill is between ensuring that industry has a proper incentive to invest and recognising that the consumer must be protected against the lack of competition that will inevitably come from copyright protection. If we protect industry too much the consumer will suffer through the abuse of monopoly, and if we give too little protection to industry it will lose the incentive to invest. Our task is not to choose between the interests of industry and the consumer but adequately to balance those interests. A competitive industry will require a powerful consumer and the wise consumer knows that the value of industry must be built on investment.
The clause that we are debating is perhaps the most contentious for industry in the entire Bill. It is about the new concept introduced by the Government of unregistered design right. Although protection is already given to aesthetic designs, there has been considerable debate about the protection that should be given to functional designs—the designs of everyday articles used in industry and in the home. We agree with the Government that reform is necessary because the law has been left in an entire mess. Functional designs enjoy protection equivalent to artistic works under copyright—life plus 50 years—whereas aesthetic designs enjoy a much shorter period of protection. In addition to that inherently unlikely and wrong position, an important court case in 1986, British Leyland and Armstrong, dealt with the whole question of functional design and car spare parts. In effect, the court said that the law needed to be reformed because it was uncertain.
The important matter to stress when talking about spare parts is that we are not talking merely about spare parts in the car industry. One of the things made clear to us in Committee and in the representations addressed to us is that if the debate proceeds simply on the basis of car spare parts we shall be in grave danger of legislating for the particular and forgetting entirely about the general. To illustrate that point more graphically I shall read from a letter sent to me by the Society of British Aerospace companies. It says:
Unless modified, the Bill will act as an impediment to the progressive development of UK industry, particularly the aerospace industry, in its need for continued and vigorous innovation to meet world-wide competition on a fair and realistic basis.
The electrical appliance industry is also significantly affected by unregistered design right. In the briefing prepared by the Association of Manufacturers of Domestic Electrical Appliances, the association says:
Although we believe that many parts of the Bill are an improvement on existing laws, we would take this opportunity to focus attention on one specific area of the Bill which we feel would be particularly detrimental to the interests of our member companies. Our concern relates to the manufacture and provision of spare parts.
Representations have also been addressed to us by the Variety Group which operates in industrial constructions and farm machinery. It makes the same points. A brief was also prepared by, I think, the Design Council. There have been so many briefs on this issue that it is difficult to know exactly where letters or briefings come from. The Design Council says:


The zero protection proposed for a great deal of human ingenuity seems at odds with the 25 years protection proposed for the decorative panel"—
Those are designs with aesthetic qualities. The brief says:
A cuddly toy will get 25 years' protection but a new educational construction kit will be open for all to copy from day one.
Of course the car spare parts industry is important and will be greatly affected. However, it is not the only industry that will be affected. In addition to the problem of deciding how functional designs should be protected in relation to spare parts there is also a problem about the definition of spare parts. That is because the Government have not defined spare parts in the Bill. They have gone for what is now called the "must fit"/"must match" exemption. They are saying that when a part must fit or must match another part it loses its copyright protection. In Committee we saw the anomalies to which that could lead. In a Hoover two end parts must fit and must match the main body of the machine. In the middle there is a joining part that picks up fluff.

Mr. Ted Rowlands: That is called the agitator.

Mr. Blair: I thought that that was a political term, but apparently it is used in relation to Hoover spare parts. The Bill has been a continuing education for us all.
The agitator part does not get the benefit of the "must fit"/"must match" exception and is protected. However, the two end bits that join it to the machine fall within the "must fit"/"must match" exception and will not be protected. That is an inherently foolish way in which to leave the law. The solution proposed by the Government, at which I shall shortly look in detail, does not merely arouse the anxiety of many companies across the spectrum of industry. Even the definition of spare parts has been subjected to criticism.
At the beginning of my speech I spoke about a balance and such a balance applies strongly to this part of the Bill. We must pay attention to the need to reward investment while not allowing the abuse of monopoly because of anti-protection practices. Under the Government scheme, functional designs are to be given 10 years' protection. During the last five years of that 10-year term, spare parts manufacturers or copiers can manufacture that functional design under a licence of right from the original manufacturer. That scheme of 10-year protection for unregistered design right with licences of right in the last five years sits alongside the "must fit"/"must match" exception. That means that spare parts that must fit or must match lose protection altogether. The three components of the scheme are the 10-year period, the five years with the licence of right and no protection at all for spare parts that fall within the "must fit"/"must match" exception.
4.30 pm
The difficulty with the Government's proposal is that it does not address the problem of the requirement to balance the need to reward investment and the need to protect the consumer. The Government's scheme decides what spare parts will be given protection simply by reference to an accident of design; if the piece must fit and must match another, it loses protection, irrespective of the investment made and the development costs. If it does not

fall foul of the "must fit"/"must match" exception, it attains full unregistered design right protection as any other functional design would, even though few research or development costs may have been involved.
The Government say that they have thought about the proposal carefully. They say that they have been through all the various arguments and reached a considered view. It is worth reminding Ministers, however, that one thing of which the Government cannot be accused in this matter is consistency. They have constantly changed their mind, and I do not entirely criticise them for that because, as I said, it is a difficult issue. None the less, the Government have swerved this way and that throughout a debate that has lasted for a period of years.
When the 1986 White Paper was published, the Government's position was as clear as it could possibly be. In the White Paper the Government clearly said that, having considered all the arguments, they believed that spare parts should be given functional design protection. That was the position that they adopted in 1986, and it was only changed the following year. The Government say that they have considered the matter over a long period, and I accept that, but they have also constantly changed their mind over a long period. At the end of the Committee stage the question arose whether they should not change their mind again and realise the strength of the arguments put to them.
I have described the Government's proposal, and I shall now deal with our alternative proposal. There are two major problems about what the Government have done. First, they have not defined spare parts but have simply introduced the concept of "must fit"/"must match". Any workable scheme to deal with functional design as it relates to spare parts must define spare parts. That is why we have provided a definition of spare parts as replacement parts for another article in amendment No. 227. To take my earlier example of the Hoover machine, the agitator would be included in the definition of spare parts along with the two end parts. That seems sensible, as we should thus avoid the absurd anomaly that one part of what is essentially the same spare part has design right protection and another does not.
I freely confess that the second part of our proposal is a compromise, but it is a compromise that has some merit, and it is certainly superior to the Government's proposal. At the moment, spare parts lose all protection if they fall within the "must fit"/"must match" definition. That is clearly wrong, for all the reasons that I have given. On the other hand, it is correct that we need to guard against the abuse of the monopoly position that copyright protection confers—a monopoly position that has been abused.
We propose, therefore, that spare parts should be given full design right protection, but that they should none the less be able to be copied under licence from the original manufacturer. If the terms of that licence cannot be agreed between the parties, there should be a right of appeal to the Comptroller-General of Patents, who will then decide what the terms of the licence should be.
That would allow copiers to carry on copying original parts, but it would ensure that they could do so only under licence from the original manufacturer. That would mean that the original manufacturer would be able to secure some reward, within the terms of the licence, for his investment—his research and development costs. I accept that that means that copying could continue, but it would


be infinitely preferable for it to continue only under licence, whereas under the Bill as drafted it could continue without any restriction.
When we pressed this point, the Government said that those arrangements would be too complicated and that it would lead to too much bureaucracy if the Comptroller-General of Patents was given the right of appeal on the licences of right. We were told that it would be too problematic to administer. The conclusive answer to that argument is that clause 228 already provides for licences of right during the five years of an unregistered design right term. In other words, there is the ability to copy any functional design, subject to licence, during the last five years of the 10-year term. That is already in the Bill.
The Opposition say that spare parts should also be able to be copied only under licence and that to give adequate protection to the consumer that licence should be available from day one, if terms can be agreed. The copier could then copy but only with the consent of, and on terms agreed with, the manufacturer. If the parties could not agree terms, the matter would go to the Comptroller-General of Patents who would adjudicate upon it. That is precisely what would happen in the last five years of the unregistered design right term in any event. Whereas our proposal does not give complete design right protection, as we suggested in Committee, it is a workable compromise between the interests of consumers and the interests of industry.

Mr. Terry Davis: My hon. Friend has clearly made a detailed study of this difficult matter. Specifically on the question of car spare parts and replacement parts, will my hon. Friend make it clear whether the proposal would mean that there would be a licence of right during the first five years as well as during the second five years, or does the proposal replace the existing provisions altogether?

Mr. Blair: Under the Bill as drafted, car spare parts could be manufactured without any hindrance at all. In Committee, it was strongly suggested that spare parts should be given proper design right protection, but the amendment embodying that suggestion was not accepted by the Government. Our compromise proposal would allow copying, but only under licence from the original manufacturer. That would mean that the original manufacturer could secure—in the form of royalties, for example—compensation for his development costs and other investment.
I fully accept that the car industry would like full unregistered design right protection for the entire five-year term, as with other functional designs. However, in view of the Government's opposition to that, we have produced a workable compromise. Whereas under the Bill as drafted copying could go on without any let or hindrance, under our proposal it could happen only under licence from the original manufacturer. That would allow the manufacturer to negotiate the terms on which the copying of spare parts could take place. As I said, that is a much better way of dealing with the matter than the Government's proposal.

The Parliamentary Under-Secretary of State for Industry and Consumer Affairs (Mr. John Butcher): Perhaps I may clarify the position. The hon. Member for Sedgefield (Mr. Blair) said that under the Bill as drafted,

copying could go on unhindered. That is not the case. Copying would be unhindered only for those parts of the spare part for which the alternative designer had no choice under the "must match" exception. In the case of a functional part for which an alternative design solution could be found—away from the parts of the part that must fit—there is design freedom. I would not want the hon. Gentleman to have the impression that copying of all kinds of any spare part is unlimited and free. That is not the case.

Mr. Blair: That brings us back to the great bone of contention in Committee, what "must fit"/"must match" encapsulates and what it concerns. The Minister's intervention simply underlines the point. The truth is that industry has been through this Bill carefully and it does not have the faintest idea how it will be applied. Those involved in the car industry fear that their spare parts will be copied without any hindrance or obstacle. They are concerned that that will mean that their research and development costs and the investment that they made to manufacture the original part will be lost because the copier will be able to copy the spare part without difficulty. If we are being told that "must fit''/"must match" does not do that, we are being told something different from what we understood to be the truth in Committee.
The advantage of our scheme is that it would ensure that the manufacturer had a bargaining point not merely in terms of a reward for the investment made, but, as one Conservative member of the committee said, in terms of quality. We are already aware that the quality of some of the spare parts manufactured by copiers is not the same as the originals. That is something that could be taken into account by the parties coming to an agreement or, in default of the agreement, by the comptroller. The Government argue that such a step is too bureaucratic and too complex, but the conclusive rebuttal of that argument is that licences of right will be available in any event for designs in the last five years of their term.
In Committee the Minister advanced two other arguments in defence of the Government proposals. We have done some research on them and found them lacking in substance. The first argument that the Minister advanced was that the spare parts used in the aerospace industry will not get the benefit of unregistered design right, but that, none the less, many of those things could be patented and therefore the patent law could supplement whatever deficiencies may arise regarding unregistered design right. We have studied that argument carefully and the aerospace industry has told us that that is not the case. Concorde, for example, which is a fairly advanced piece of engineering on anyone's terms, only has 12 parts that are patented. The likelihood of being able to resolve the difficulties of unregistered design right through patent law is remote.
The second argument advanced by the Minister with which I must take issue is that we are in step with other countries by not giving protection to functional design spare parts. He quoted West Germany as an example. I have studied the West German system and most of what we describe as functional design spare parts are protected by West German law. That protection is afforded in a slightly different way from our system, but none the less that protection is available.
West Germany has two particular ways in which to protect functional designs. The first is under what the


Germans entitle a "gebrauchsmuster", which is a utility model term of protection. Italy uses a similar device. As a result, new functional designs that include some type of technical advance are given protection. Under the German design Act new and original designs which are not purely technical are also protected. Therefore its visual appearance has some bearing. That protection is so broad that it encompasses many of the things that would fit within our ordinary unregistered design right spare parts system. Although registered designs in the United Kingdom amount to 6,500 per year, in Germany registered designs run at 65,000 a year—10 times as many. In effect West Germany offers protection in many different circumstances to spare parts.
The Minister will be aware that industry is extremely concerned about the Government proposals. There has been intensive lobbying from practically every part of British industry. Industry has said that many of the spare parts that are currently manufactured as original parts and which have protection will not be protected after the passage of the Bill. Is that correct? I asked the Minister that in Committee and I would like an answer today. Has there been a study of the exact impact of the Bill on British industry? Even allowing for the normal hype generated by lobbyists, they have made a powerful case to us about the effects of the Bill.
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In this Bill I do not believe that we should create some false dichotomy between industry and the consumer and that one must choose either to be pro-industry or pro-consumer. If copyright protection was abolished tomorrow it would inevitably mean that certain items would be copied and the price would come down. That might mean short-term benefits for the consumer, but in the long term there would be no benefits because industry would cease to invest. We must not make a choice between those interests, but strike a balance between them. We believe that we have struck a better balance than the Government and, for that reason, I commend our amendments to the House.

Mr. Richard Page: I should like to discuss amendment No. 274, which is tabled in my name and in the name of my hon. Friend the Member for Thurrock (Mr. Janman). Our amendment removes the "must match" exception in the Bill.
I shall not rerun the complete Committee stage. I accept the Government's argument that the existing position on functional designs needs reassessing and must be brought into better order. The recent case to which the hon. Member for Sedgefield (Mr. Blair) referred shows that the existing system has been allowed to run for too long and that the consumer has suffered.
In Committee it was clear, as the debate went on, that there was gathering disquiet about the Government's proposals. If the amendment that I put down in Committee had been put to a vote I believe that it would have been carried. That would have meant that the "must match"/"must fit" exception would have been removed. In that debate it became clear that industry was just waking up to the effects of those exceptions. More and more industries have been contacting me day by day to outline the effects of the "must match"/"must fit" exceptions on

their businesses. As time has gone by and as industry has become more aware, it is clear that the "must match" exception has given most concern.
In Committee we had a marvellous time as many hon. Members produced all sorts of exhibits to illustrate their case. The hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) produced something which I thought at first was vaguely obscene, but which I then discovered was the seal from the front of a Hoover washing machine. One can see how a vital part such as that could be abused by a copyist.
The forms of protection that have been proposed by the Government appear to be out of kilter. It is rather peculiar that a registered design can be given for 25 years for some fairly innocent item—I gave the Committee the example of a belt buckle—but under design right an item is given only five years' complete protection and for the other five years it can be copied under licence. It now appears that design right protection has been removed with the exceptions introduced in the "must fit"/"must match" areas. Surely, as night follows day, it is inevitable that when one talks about "must match" a discussion of car panels will follow. I shall be the first person to talk about car panels, since nobody else has.
The issue that we are discussing is rather confusing. I agree with the hon. Member for Sedgefield, who said that the legislation will cause confusion. It could be a lawyer's paradise. I hope for greater clarification of the borderlines of where the exceptions will apply—and where they will not. The hon. Member for Sedgefield illustrated the point by mentioning Hoover parts, and a legal gentleman could have considerable fun and game in court ascertaining just where the line should be drawn.
Let us return to car panels. I shall not take the House through the process of making a motor car again. I bored the Committee enough with that in June.

Mr. Nicholas Baker: Hear, hear.

Mr. Page: I thank my hon. Friend for his endorsement of the quality of my speeches in Committee.
A considerable investment is made. The sum of £800 million has been quoted as the price of producing a new body shell that goes on the market. As the Bill stands, that £800 million-worth of body shell can be copied in bits and pieces from day one. It is not fair that a copier can start copying the bits that he wants with no recompense for or acknowledgment of the huge investment put in by the manufacturer.
The Government say that the cry of competition is the reason. Fair enough: let us have competition, but let us make it fair. This is not fair, because a manufacturer makes a huge investment, which is entailed in his obligation to the consumer to make every spare part or panel that goes to make up a car. He cannot make only the parts that he thinks will sell in large numbers and ignore the ones that will be the subject of only limited demand.
What is the copyist's obligation? None. He will cream off the panels that get damaged and for which there is high volume demand—and to blazes with the rest. He will not produce roof panels in competition with the manufacturer or produce bulkheads to ensure that the manufacturer is given appropriate competition. Copyists will put only high-moving parts into their factories. They will assure themselves of volume sales and manufacturers will be left to pick up their obligation to the customers.
The hon. Member for Sedgefield concentrated on the exception of "must fit". I have a growing impression from the companies that have contacted me that they can live with that exception. They do not like it or think it fair but when the crunch comes they think that they can just about accept it. But they cannot accept the "must match" exception and have vigorously campaigned to try to remove it.
It is only right that we should cast an eye over what is happening in the rest of the EEC. In Germany and Italy, design registration protection is given to new and original designs, with an emphasis on aesthetic appearance. The German design law, passed in 1976, means that a typical design would require registration which would confer protection for a limited period. In France, protection is for designs that are industrially produced and of novel appearance, including designs whose shape is dictated by function. The Benelux and Scandinavian countries have a unified industrial law for designs in relation to appearance. Looking across at the EEC and some Scandinavian countries, we can see that the protection is in place there. As has already been said, there seem to be far more registrations there, too.
In the EEC countries there are laws about unfair competition in Germany, France, Italy, Benelux, Denmark and Spain. The protection that those laws provide against unfair competition has supplemented some of the missing intellectual property rights. In the Benelux countries, the law is broad enough to cover a variety of activities which, in the United Kingdom, would have to be dealt with by copyright, if they could be dealt with at all. So an unfair competition approach permits a sensible distinction to be drawn between parts that can be copied, if there is not to be a monopoly, and those which can at least be differentiated.
In the United Kingdom, now that we are a part of a larger economic unit, there is a feeling that some protection is needed for the enormous outlay of time and money involved in developing and testing new products of mass production which fall short of the test of inventiveness that qualifies a product for a patent. The hon. Member for Sedgefield mentioned a number of items that could possibly be patented that went into the construction of Concorde. I urge my hon. Friend to re-examie the provisions of the clause a little more closely. I hope he will find it in his heart to be charitable at this last-ditch stage and withdraw the "must match" exception.

Mr. Rowlands: The value of Report stage of the Bill is that it gives us the opportunity to disgest some of the arguments and issues and to scrutinise what Ministers have said. Sometimes we find they have fobbed us off, or have bent the argument; sometimes they have addressed it and produced cogent cases against our amendments. Some of us have thus scrutinised the Minister's words since Committee stage. Now we have the chance to scrutinise the Minister's case against the pitch and argument of my hon. Friend the Member for Sedgefield (Mr. Blair) and the hon. Member for Hertfordshire, South-West (Mr. Page).
One of the Minister's arguments was that a licence of right from day one would create a horrendous bureaucracy. There is a problem with that: he is not certain which way to argue. In his earlier intervention in the speech of my hon. Friend the Member for Sedgefield, the Minister seemed to imply that many designs would attract that right. At the same time he argues that horrendous

bureaucracy would follow if we included a large number of parts in any form of copyright. We need to know exactly how many parts will be excluded from any design right by the "must fit"/"must match" arrangements. If a large number is involved, the Minister's argument that giving design rights and licensing rights from day one would entail bureaucracy might have some validity, but I shall argue that that grossly exaggerates the case.
The Minister must make up his mind: will a large number of "must fit"/"must match" exclusions be free of any form of design right? If so, imposing the licence to right will create bureaucracy, in the Minister's view. On the other hand, the Minister seemed to give the impression earlier that we were exaggerating the number of parts that will not attract design right. He seemed to say that many more parts would attract design right than the industries that have made representations to him or those who have presented this case think.
I shall not trespass on the subject of the important next group of amendments, which are concerned with what is original and what commonplace. That is another fundamental issue in the problem of defining how far design right reaches—or does not reach.
I wish to tackle the Minister's case against what I thought was an extremely important initiative taken by a large part of industry. I am glad that the CBI has endorsed the suggestion that one way forward in the argument over spare or replacement parts would be to grant licences of right from day one. When we discussed this in Committee, the CBI had not yet supported that principle, and we had heard from only some sections of the industrial community. Since then, there has been general acceptance of that generous compromise by those who represent industry. The granting of a licence of right from day one would also enable the designer and manufacturer to specify the quality and safety of copies. I am deeply disappointed that the Minister will not seize on that compromise and carry it forward.
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The Minister argued that the compromise would create bureaucracy. From talking to firms in my area and others, and from representations that I have received, I know that the greatest administrative burden would be placed on those who grant the licences—the very people who support the amendment. A large part of the administrative burden will fall on those who advocate granting a licence of right from day one. They are willing to carry the burden of the many applications from companies that wish to make the parts that they originally designed.
The Minister has grossly exaggerated the character of the licensing arrangements. Industry already spends a great deal of time licensing and has developed standard documentation and routines for dealing with applications. We should not be bamboozled or cajoled into conceding the Minister's argument that it would cause undue bureaucracy.
The Minister also argued that much bureaucracy will fall on the Comptroller and that, if we waited for five years, we would have some case law to follow. He exaggerates the number of cases that would go to the Comptroller under our arrangement. We should not forget that parts are usually supplied under warranty. They will not need to be copied from day one, but those who want the right to copy them will then be able to apply for a licence. The copyists are not being placed at a great


disadvantage. By the time that the negotiations have taken place and a market in those spare parts has been created—after the warranty has expired—they will have the licences to copy those parts.
In Committee, we pointed out to the Minister that we would have this problem in five years' time. Why will it be less bureaucratic after five years? The Minister said that, by that time, a considerable amount of case history will have been built up and there will be less bureaucracy, but how will case history be built up if there is a five-year delay? We shall have to deal with arguments about case history irrespective of whether licences of right are granted on day one or in the fifth year.
On 14 June, the Minister said:
But it has been made clear to us that the European Commission would object if we increased the term or reduced or eliminated either of the exceptions."—[Official Report, Standing Committee E; 14 June 1988, c. 555.]
Where is the evidence for that? We had many exchanges in Committee about the EC Green Paper on copyright law. Neither the Minister nor members of the Committee had seen it, although it had been seen by those concerned with the home taping levy and had been passed on to the Japanese. I thought that that would contain the evidence for the Minister's statement, but it contains little if any reference to those issues. If the EC objected to our suggestion, there would have been a specific reference to it in the Green Paper. The Minister said that we cannot amend our Bill because the EC would object, but its Green Paper makes no reference to the issue. We should not allow his argument to stand. Even if he produces such evidence, the House has the right—in the absence of EC law—to amend the Bill as we suggest.
The Minister may try to argue about bureaucracy, but the most important thing about the key amendment in this group is that no one suggests that the original manufacturers or designers of parts should have a monopoly right. We are going much further than many others are willing to go. We are destroying the concept of monopoly and would grant people from day one the right to copy parts. That is an important compromise and, given the lack of consensus on the issue, it would be foolish for the Minister to turn his back on our important suggestions.

Sir Hal Miller: I am a stranger to the debate so far, not having had the privilege of being a member of the Standing Committee, but I feel that something needs to be said in support of the Government on the issue, with specific reference to car panels. I was not provoked on this subject by my hon. Friend the Member for Hertfordshire, South-West (Mr. Page), but I was reminded of certain facts that need to be drawn to the attention of the House in support of the Government's position.
I had intended to make the burden of my remarks on the series of amendments coupled with new clause 5, which deal with licences. I think that that is where my hon. Friend and I would find common ground, in that there should be a system of licensing that should provide for some reward for the original designer, although we might have some disagreements about how soon that licence should be obtainable and the royalty that should be paid.
My point is about the need to match. With regard to car panels, it is important to bear it in mind that the whole

business came into being for two very good reasons. The first was the introduction of the MOT test, which is a measure that I hope we all welcome, but it necessitated the replacement of rust-damaged part panels. Our original equipment manufacturers were not in the habit of supplying part panels and had no wish to do so at that stage. They made a great deal more profit from supplying whole panels. We shall come to the point about the prices at which they supply whole panels, but the original concept was the rust-corroded part panel, which gave rise to the suppliers.

Mr. Page: I agree with my hon. Friend about how this all came about. In the Bill we have the design right protection for five years and more, beyond which the panel makers will be able to produce automatically those types of panels. It is most unusual for a car panel to rust away after the five years. In the second five years, one can have a licence of right. So I agree with my hon. Friend, and look forward to what he says.

Sir Hal Miller: I was coming to a further development, that the products of the independent panel makers were originally part panels, but later whole panels, for crash-damaged cars, for which there was a large demand. The whole panel's price was kept up by the original equipment manufacturers, particularly through their franchise system. Now we are reaching the subject of competition in the retailing of motor vehicles and supply of parts. The figures show that most customers remain with the franchise dealer while their vehicle is under warranty, super-cover and so on, but when that period expires there is a sharp decline in the numbers of those who travel, perhaps some distance, to the franchise dealer, and a great rise in the numbers of those who go round the corner to the man at the local garage, as I have been in the habit of doing, and ask for a repair. Many of us are familiar with the question that is asked: "Is this for insurance or are you standing the rap?" Often that produces a different answer from the customer, as to the type and extent of the repair that he wishes to be undertaken.
What is beyond doubt is the decline in the number of people attending franchise dealers for spare parts after the period of warranty has expired and the tremendous growth that we are now experiencing in alternatives to franchise dealers. I am not supposed to be advertising, but a large number of firms are growing up, which supply various parts. We are seeing that trend partly because of the rigidities, expense and restrictions of the franchise system. That area needs to be further examined.
I am not carrying out a vendetta against our car manufacturers, but when they complain about the independent panel manufacturers, we must say that they themselves have had recourse to those independent manufacturers. For example, if one peels the label of one of our well-known makers from the panel, one finds the independent panel maker's name underneath. That might strike some of us as a curious protection of therights—

Mr. Tim Janman: In that example, would the original equipment manufacturer have given all the necessary details of the original design to the third-party copier so that he can manufacture the panel to the correct quality and standards?

Sir Hal Miller: I am happy to respond to that question. I was not trying to lure my hon. Friend onwards, but I have to tell him that the independent company that supplied the panel from Germany is being prosecuted in this country by the same original equipment manufacturer for supplying identical panels in this country, although the manufacturer was buying the panels from the same company in another country. It was a ham-fisted attempt but that is what one is led to when trying to protect the franchise system.
In another case, one of our original manufacturers, whom I shall protect by not naming him, set up his own subsidiary in Taiwan with the express purpose of manufacturing those selfsame panels. So the idea that we are getting the panel hot off the press in this country or in Germany, from one of our original car manufacturers, is far removed from the truth. We should not mislead ourselves into thinking that that is so.

Mr. Matthew Carrington: Does my hon. Friend agree that having multiple sources is often a great advantage for the manufacturers of body panels, in case one of the sources of the body panels has a strike, goes out of business, and so on? Frequently one finds that many manufacturers are encouraged to produce components of all sorts for the motor industry, just to ensure that there is continuity of supply.

Sir Hal Miller: I am one of those who constantly pay tribute in the House to the efforts of our major manufacturers to overcome their industrial relations problems. Those considerations are not so relevant now as they were 10 years ago. In the motor industry as a whole, it is commonplace that manufacturers seek single-source suppliers for longer-term deals and put out the design of the part, as long as the specification and quality reach the right standard. That is the trend. What my hon. Friend was talking about may have been true 10 years ago, but it is not so much the case for motor manufacturers now.
We must support the Government on the "must match" exception because the panels have to comply with the original contours of the car if they are to be an effective replacement. One of the reasons given for maintaining the hoped-for monopoly and the franchise deal in respect of the panels is that there is a commitment to keep supplies for earlier models for 10 or 12 years. I wish that that was shown to be true and that the prices, where such panels were eventually discovered in the warehouse, bore some relation to the prices for panels that could be readily obtained from the independent manufacturers. The argument is not quite so much one way as some of my hon. Friends believe.

Mr. Rowlands: I have listened carefully to the hon. Gentleman's case, but not one of his arguments has been deployed against the right to license from day one. He referred to a warranty period, which means that the right to license from day one would enable any copier to get his part into the market place in good time. The hon. Gentleman also referred to the quality of the specification. A right to license from day one could specify that. He also spoke about the relationship between the independents and the main manufacturer. A right to license from day one would take care of that. I remind the hon. Gentleman

that the clause does not relate only to the body panels of cars. It deals with washing machines and other complicated machinery.

Sir Hal Miller: I said at the beginning of my speech that I intended to devote most of it to licensing, particularly registered design rights. We shall deal with that question when we consider the amendments grouped with new clause 5. I said that I thought that my hon. Friend the Member for Hertfordshire, South-West and I would reach common ground on that point. However, the Government need some support over the "must match" exception because the argument seems to be all in one direction. There are very good reasons for supporting the Government.

Mr. Terry Davis: My hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) has just reminded the House that although the clause applies to replacement parts for motor vehicles, it also applies to the aerospace industry and a number of other industries, such as the electrical appliances industry. I accept what my hon. Friend has said, but I shall concentrate my remarks on the effect of this legislation on the car industry. I worked for many years on the marketing and the supply of spare parts for the industry. That was some years ago, but I continue to take an interest in it.
My hon. Friend the Member for Sedgefield (Mr. Blair) said that a balance must be struck in the car industry. I agree with him. He referred to the need for the industry to be neither pro-industry nor pro-consumer. I agree with him about that, too. However, he spoke as though the industry consisted solely of motor manufacturers. It is a much more complex industry than that. It includes the manufacturers of spare parts. They are an extremely important part of the industry. Manufacturers of spare parts include a wide range of businesses, from Lucas and GKN at one end to very small firms, sometimes described as back-street firms, producing items such as body panel parts, at the other.
We must also consider the dealers. There is a divergence of interest between the franchised dealer—franchised by the motor manufacturers—who receives a percentage of the price of a spare part and the unfranchised garage that does a large part of the servicing of motor vehicles. The latter is an extremely important part of the motor industry, consisting mainly of very small firms—of people starting up on their own.
Similarly, the importers of vehicles have not been mentioned in this debate, but they must also be taken into account. If the Bill protects vehicle importers, we shall bar our own industry from supplying spare parts. French, German, Japanese and Italian cars account for a considerable number of the cars that are sold in this country. I should be loth to do anything that cut our spare parts manufacturers out of that very profitable business.
Furthermore, the interests of consumers are not always identical. The original buyer of a motor car will have a different interest in spare parts from that of the person who buys a second-hand motor car. The second-hand car owner will have the greatest interest in the price of spare parts. He will require more of them, particularly the more expensive spare parts that the original owner of the car will not have to buy, unless there is an accident.

Mr. Janman: The hon. Gentleman compares the interests of a person buying a new car with those of a


person buying an older car. Does he accept that as a car gets older it is inevitable that the number of parts that make up the total market place for that model will reduce and become more and more slow moving? If we allowed the "must match" exception to remain, the copiers would not be interested in the slow-moving parts. Only the manufacturer of the original equipment would be interested, and the price of the slow moving parts that go into older vehicles would increase.

Mr. Davis: No, it is not like that at all. There is a business cycle for spare parts. To begin with, it is very slow moving. Then it builds up to a peak. That is when a motor vehicle is several years old. Depending on how long that model is kept in production and the number of vehicles sold, there is a rise to a peak in sales of spare parts. Then it tails off. It is not the case that the older the vehicle and the older the parts, the more slow-moving they will be. One could be selling more parts for older vehicles. I am referring to parts that wear out. There is a different pattern for parts that are replaced because of crash damage. I shall not bore the House by describing the various life cycles and business cycles of spare parts, but the hon. Gentleman has over-simplified the case.
The owners of second-hand cars have a different interest in spare parts from those of fleet buyers or the owners of new cars. They will buy different sorts of parts. The person who buys a second-hand car will have to buy more expensive replacement parts, particularly body panel parts and engine parts. However, there is some community of interest between the motor manufacturer and the small manufacturer of body panel parts. When a car goes out of production, a motor manufacturer may run out of spare parts because it was impossible to envisage how many buyers of a spare part there would be when production ended.
The motor manufacturer will want to obtain small runs of pressed parts from the so-called back-street manufacturers. If they did not exist, the motor manufacturers would be in great difficulties. Motor manufacturers rely on spare parts manufacturers in places like Coventry, particularly to provide spare parts for the kind of cars that are bought by enthusiasts and that people drive not for years but for decades. It is very difficult to obtain such body parts unless it is possible to arrange for a small run of pressed parts every few months or, more likely, every few years.
It follows that there is not a complete divergence of interest between the various sections of the motor industry, even when we speak about motor manufacturers and body panel manufacturers.
My hon. Friend the Member for Sedgefield referred to the need to reward the investment by motor manufacturers.

Mr. Rowlands: My hon. Friend referred to the life cycle of parts. Will not the design right also have been worked out for spare parts? Would not licences for spare parts exist for up to five years? During that life cycle, copying would certainly be allowed. Has not my hon. Friend argued against the amendment?

Mr. Davis: My hon. Friend is absolutely right. I am simply explaining that it is a more complicated industry than has been suggested. I shall turn to my hon. Friend's point in a moment.
It is necessary to reward the motor manufacturer: but how is he to get his reward? It has been suggested in this debate that the motor manufacturer will be rewarded for his investment by selling spare parts. To do that, he will ask a lower price for the vehicle when it is sold and then ask a higher price for replacement parts. It is rather similar to a razor blade manufacturer who is prepared to give away razors, provided that he is allowed to sell the blades that fit the razor. But the interests of consumers vary. If we are not careful, we shall penalise consumers who buy second-hand cars. Generally speaking, they are in the lower income groups.
To turn directly to the point made by my hon. Friend the Member for Merthy Tydfil and Rhymney, it is not a question of body parts only. One of the largest segments of the spare parts business is exhaust systems. They do not last five years on a new car. The owners of cars often have to replace the exhaust system before the cars are five years old, so the replacement of exhaust systems becomes important within five years. Therefore, within that five-year period, some of those reasonably expensive parts and systems will be sold.
It has been suggested that there should be a right to a licence from day one. That is a constructive suggestion. The difficulty is how much the licence will cost—that is, how much the motor manufacturer will charge the spare parts manufacturer for a licence from day one. That is where the conflict will occur. Of course, it will be in the interest of the motor manufacturer to extract the highest possible price for a licence from the replacement parts manufacturer. I am concerned as to how that will be sorted out.
5.30 pm
My hon. Friend the Member for Sedgefield suggested that there should be an appeal to some registrar. I understand that. But we are talking about many parts. It is not a case of a licence to make a single part. A very large number of parts will be involved, presumably with a different licence fee for each part.
I am not surprised that at least some motor manufacturers agree with the idea of a right to licence from day one, provided that they can set the price of the licence. That is a key point. While they are negotiating, does the spare part manufacturer have the right to make the body panel or other part? That is an extremely important issue which my hon. Friend did not mention.
My hon. Friend the Member for Merthyr Tydfil and Rhymney raised the very important questions of safety and quality. There are other ways of ensuring the safety of spare parts, and it is wrong to try to do it through this Bill, which does not deal with safety. There are laws on product liability and regulations on British standards. It is quite right that we control the safety of spare parts. As for quality, again it may be against the interests of the consumer for motor manufacturers to impose a quality standard upon the manufacturers of spare parts. Some famous names entered the replacement parts business making parts of a lower standard and quality than the original equipment provided by the motor manufacturers, but of a quality and standard acceptable to the consumer.
A classic name is the pioneer of exhaust systems known as Quinton Hazell, who founded his business on that principle. The consumers did not want the equivalent of gold-plated exhaust systems; they wanted serviceable exhaust systems, and he built a whole business on that concept by setting a standard of quality acceptable to the consumer, but of a lower standard than the original equipment from the manufacturers. That is part of the right of the consumer to choose. If a consumer pays a far lower price, he will not expect a standard of quality which he would receive from the original equipment manufacturer at a higher price.

Mr. Page: Although an exhaust pipe is obviously not a safety part of a motor car, some manufacturers would be extremely concerned about the quality of any product made under licence, particularly a body panel, for example, that had taken part in crash tests to conform to the various regulations, and would not wish a cheapjack copier to make it out of much thinner material that would not deform in the same way, and give controlled deceleration and therefore, if it were fitted, would put the occupants of the car through the windscreen.

Mr. Davis: The hon. Gentleman and I have no difference in our concern about road safety. We differ as to how those standards, which are important for road safety, should be imposed and monitored. I suggest that there are other ways to control the safety and quality of products. There are other laws which do that—not by giving the motor manufacturer a monopoly over the supply of replacement parts. That is the difference between us, although we have the same objectives.
I am not surprised that the motor manufacturers do not like the "must fit"/"must match" concept. I am not surprised that the CBI does not like it because the CBI tends to reflect the views of the motor manufacturers, and I am not convinced that the CBI reflects the view of those who make the replacement parts. Certainly it would be to the disadvantage of those manufacturers, which are small firms, and if we are not very careful about the way in which we engage in this legislation, it may lead to higher prices to the consumers. The motor manufacturers are, by any definition, big business. Some of the manufacturers and suppliers of replacement parts are small firms, and their consumers tend to be people in the lower income groups.
I have reservations about some of the views expressed by my hon. Friends, and I shall listen carefully to the Minister's reply.

Mr. Janman: It is worth looking back at the Standing Committee, and worth remembering that when we had a long and intensive debate on the "must match" exception clause, every Conservative Member who spoke on the clause either counselled the Minister to proceed with at least caution, or expressed total opposition to it.
Although I do not wish to repeat all that I said on Second Reading or in Standing Committee, I wish once again to make some comments against the "must match" exception and with that in mind I wish to speak in support of amendment No. 274, tabled by my hon. Friend the Member for Hertfordshire, South-West (Mr. Page) and me. It is also worth noting that when we debated the clause in Standing Committee, I hope that I am right in saying that we did not go to a vote because the Opposition had been left in a state of limbo as industry, through various different bodies—the CBI being the most notable—had

not really got its act together in presenting a coherent alternative strategy to the one which the Government were proposing at the time.
My hon. Friend the Member for Hertfordshire, South-West said earlier that if there had been a vote in Committee on the "must match" exception clause, knowing how some Conservative Members would have voted or abstained in that Division, that clause would have been taken out of the Bill in Committee. I can verify that.
Today, we are discussing how to improve the market place for the consumer. My hon. Friend the Minister will acknowledge that I am a strong supporter of increasing choice for the consumer and freeing up and deregulating markets and liberalising them so that the consumer has more choice. On the other hand, we wish to maintain fair competition and an adequate reward for the considerable investment in design and innovation by original equipment manufacturers.
I agree with the hon. Member for Sedgefield (Mr. Blair) that this is not a case for deciding whether one is pro-consumer or pro-industry. I do not believe that the "must match" exception clause is pro-consumer, although I agree with earlier comments that the exception will hit a large number of manufacturers across the face of British industry and in many different industrial sectors—white goods, electronics, the motor industry and others. Because of my experience of working in the motor industry, I wish to focus my comments on how it will not help the consumer in that spare parts sector because the consumer does not have an interface with the people who are supplying the body panel. The middle man has that interface.
My hon. Friend the Member for Bromsgrove (Sir H. Miller) was quite right when he said that if one goes to a back-street garage or a franchised dealer, one does not normally go there for a body panel. One goes there to have one's car serviced or, if body panels are involved, one is more likely to be going there to have a car repaired. One goes there to buy a repair service, not one particular body panel. Therefore, the consumer has no direct connection with the decisions as to which body panel and which supplier is used, whether it is a Taiwanese import, an import from the original equipment manufacturer or a body panel made in this country by the original equipment manufacturer. The consumer does not have the chance to exercise choice and value judgment as to the difference in quality, albeit accepting that a bottom-line safety net of quality and safety exists.
The consumer is not in a position to make that choice because he does not come into contact with the supplier. The person carrying out the repair will decide whether he puts on a copied body panel or one from the original equipment manufacturer. He will decide what price is passed on to the consumer. If there is some fiddling going on—as there often is in this area—the consumer will be none the wiser as to what type of body panel is being fitted and whether the price paid correlates with that asked by the original supplier of the body panel.
My hon. Friend the Member for Bromsgrove pointed out that in about 80 per cent. of cases, the consumer is not paying for the work done. Therefore, the consumer's interest in the intricacies of where the repairer is obtaining supplies is somewhat diminished. It would be different if the consumer was paying for it with readies from his own pocket. Whether it is a company car or a car owned by the consumer himself, in 80 per cent. of cases the repair is paid


for by the insurance company. It is fair to say that insurance company inspectors do not take much notice of whether the panel being fitted to the car says "Made in Dagenham" or whether it is made in Milan or wherever.

Mr. Page: From my experience, when the inspector comes to estimate a job, he does not see any panels, because at that stage they would not have been ordered.

Mr. Janman: I am grateful to my hon. Friend for pointing that out. It is a useful clarification of my point.
To some extent I bow to the superior knowledge of the hon. Member for Birmingham, Hodge Hill (Mr. Davis), given his experience in this sector of the motor industry. However, surely he would accept that the total amount of business available to spare part manufacturers, whether it be the original equipment manufacturer or a copier, for gearboxes, front wing body panels or whatever for a 10-year-old mark I or mark II Escort is different from the business available for a one, two or three-year-old Sierra. He will acknowledge that the number of parts being sold for two or three-year-old Sierras is far greater than for 10-year-old Escorts. Therefore, the market for body panels for two or three-year-old Sierras is far more lucrative than that for 10-year-old Escorts.
The copiers do not have to invest in copying the panels, because they do not have the original specification. They simply set up shop cheaply many thousands of miles away and copy the fast-moving panels. Therefore, understand-ably they are able to vastly undercut the original equipment manufacturer. The original equipment manufacturer will be left to supply the slower-moving parts and its margins will be squeezed because of the inevitable reduction in market share of fast-moving parts. Therefore, they will put up their margins on slow-moving parts. People on lower incomes who generally own older cars will have to pay the price if the "must match" exception clause remains in the Bill.
I understand that the United Kingdom consumer organisations have expressed support for this liberalising measure. However, it is interesting that the BEUC, the European consumer body, understands what the ramifications will be for the overall standard of quality and safety and realises that the "must match" exception clause will lead to a diminution of quality. Therefore, it is not surprising that the BEUC did not intervene in the Veng v. Ford body panel case, brought by the European Commission. It takes the view that it will be against consumer interests for the Government to press ahead with the principle of the "must match" exception clause.
We have to decide whether there are benefits to the consumer; I do not believe that there will be. We also have to decide whether there will be benefits to the nation as a whole; again, I do not believe that there will be. The legislation would put us out of step with design right protection for spare parts manufacturers in virtually every major European Community nation. The loss of revenue and the reduction of jobs in, for example, Ford, British Leyland and Vauxhall will not be balanced by any increase in opportunity for the small number of British-based copiers.
Also, there will be no opportunities for new British-based copiers to spring up because they will not have European markets available to them in the same way

as foreign copiers do, because of the difference in law in terms of the strength of protection given to spare parts manufacturers in this country and the rest of Europe. Therefore, the jobs lost in the original equipment manufacturing sector of the industry will not be compensated for by any gains in the spare parts sector.
5.45 pm
The answer to the problem is not to move ahead with the "must match" exception clause but to give the right of compulsory licensing if there is proven monopoly abuse. I do not think that there is monopoly abuse at present. Because the original equipment manufacturer has to invest in the original technology and design of all parts, his costs for producing a particular body panel are much greater than those of a copier in Taiwan who has not had to invest in the early stages. It is worth noting that, in 1986, Ford's return on investment in body panels was only 3·6 per cent. That is hardly ripping off the consumer. Given an environment of fair competition and the costs that large manufacturers face when they first design a car, we do not want consumers to be ripped off. We should force manufacturers who are abusing their position to give licences to other people to compete.
Unless circumstances of monopoly abuse prevail, the "must match" exception clause is not to the benefit of the consumer in the motor industry. It will have a detrimental effect on our manufacturing base in the motor industry and in the other industries affected. Therefore, I repeat the request by my hon. Friend the Member for Hertfordshire, South-West and ask my hon. Friend the Minister, at this late stage, to think again on this misguided course.

Mr. Butcher: I thank hon. Members for continuing what has become a firm tradition of the Bill, which is to focus entirely on the merits of the argument. Yet again we have seen a diversity of opinion on both sides of the House. Without immediately displaying which side of the argument I wish to favour, all I will say is that my hon. Friend the Member for Bromsgrove (Sir H. Miller) and the hon. Member for Birmingham, Hodge Hill (Mr. Davis) did not grace our Committee. However, they have a reputation in the House as Members who are assiduous in the representation of all sectors of the motor industry and the interests of midlands manufacturing generally. There was much in what they said, and in the past I have found it to be compelling. I hope that the hon. Member for Hodge Hill will not be embarrassed, given the traditions of debates on this subject, if I say that his was a fine speech. There were many fine speeches in Committee and I hope that there will be many more on Report.
The advantages of the Report stage and remaining stages are many. The hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) reminded us that we have a chance to look at the recorded comments and to re-analyse and retune our own arguments. It is also an opportunity to continue the discussions on several items within the Bill that remain controversial. It was during that period that hon. Members have spoken to several people outside who consider that vital interests are at stake. They have done so at all times with a sense of perspective and fair play.
I hope that Opposition Members who have keyed some of their arguments against the position of the CBI as reported and of the British aerospace companies will not mind if I point out that I do not believe that the amendments have the unanimous support of the CBI. A


couple of weeks ago, I received a letter from the chairman of the CBI working group, which had been looking into design rights. He considered that he had to write to let me know that he could not support the CBI's views on the matter. The chairman's view was:
The Government had got its design proposals just about right.
We have received further letters from other industrial sources who are also of the view that, at present, the design right proposals offer the right balance between the needs of designers and competitors. We had further discussions with the CBI.
British aerospace companies are concerned because some matters of interpretation and principle are at issue. One of the outcomes of my discussion with them is that they better understood some of the terminology that we were using, but, perhaps most important of all, I was able to point out that the term of protection will not begin until articles made to a design are actually manufactured and are made available for sale or hire. I recently met representatives of the Society of British Aerospace Companies. They seemed to be content, particularly with the formulation of that part of the Bill. They suggested that the trigger for the term of protection might be the granting of an airworthiness certificate—that aircraft must be granted a certificate of airworthiness before they can be sold. So, usually, the 10-year term will begin only after such a certificate is granted.
I agree with the hon. Member for Hodge Hill and my hon. Friend the Member for Bromsgrove. We discussed the interests of the motor industry in a variety of ways, but, on most occasions, it was said that, for every job in vehicle assembly plants, there are three or four jobs outside for those who supply components and parts to vehicle assemblers. We must bear in mind the interests of that part of the industry if the preoccupation of Opposition Members—I am sure that it is the case with Conservative Members—is with jobs, competitiveness and opportunities for such companies.
Opposition Members have told us many times that we should be concerned about the ratio of imports into the United Kingdom. It is a matter of some sadness to those hon. Members who have loyalties to the midlands in particular to note the fall in the share of the British car market that is occupied by domestic manufacturers. It has happened. No doubt, on another day, we shall debate why it happened, but if 50 per cent.-plus of the car park, which is the term that manufacturers use, now rattling around this country is of foreign manufacture, should we not give an opportunity to British components and panel suppliers—those in the "must match" exception—to compete to supply Renaults, Volkswagens, Datsuns, and "fow-vays"? All such people could be legitimate targets for companies that hitherto have not found a friendly environment in which to ply their art, certainly in regard to industrial copyright.
The hon. Member for Hodge Hill asked several questions. He asked whether it is true that industry will lose protection for spare parts when the Bill becomes law. The answer is that, in most cases, spare parts will gain the protection that they now lack. He referred to the judgment in the BL v. Armstrong case. Therefore, he should know that their Lordships held that copyright does not protect spare parts. However, design right will protect spare parts, subject to the "must fit"/"must match" exceptions. In summary, the protection of spare parts will, in general, be

increased rather than decreased by the Bill. The amendments bring us to those main features—"must fit"/"must match".
I shall refer to the amendments tabled by my hon. Friend the Member for Bromsgrove in a few moments, but first I shall summarise my understanding of the main thrust of the amendment moved by the hon. Member for Sedgefield (Mr. Blair) to make sure that we are all on the same wavelength. The hon. Member wants to delete the "must fit"/"must match" exceptions and, instead, provide that licences of right will apply to all spare parts from day one. He believes that that will allow competition in what would otherwise be captive after-markets, while giving original designers more of a say in what goes on.
The hon. Member for Merthyr Tydfil and Rhymney has a slightly different solution. He wants to subject "must fit"/"must match" features to licences of right, again from day one. In some ways, the proposals are perfectly respectable—I can say that in respect of what is essentially a non-political Bill—but they suffer from one fundamental and, I am bound to say, fatal flaw. They would both mean that, every time someone wanted to compete by making an article that had to be fitted or matched to another article, he would need a licence.
I appreciate that licences would enable the rights owner to exercise some control over what a competitor produces—for example, in respect of matters such as safety and quality. But any intellectual property right comes to an end at some point. In the case of design right, it is after 10 years in the market. All the factors such as safety that are of concern to the hon. Gentleman, are just as important after the intellectual property right has run out. At that point, the intellectual property law is of no help. That is why we have left a whole raft of separate, free-standing legislation and regulations on safety, and that is how it should be. In my view, the existing provisions on safety provide all that is necessary, and additional licensing provisions in design right are not necessary.
That is particularly so because the licensing arrangements that have been proposed would have a number of highly undesirable consequences. First, the need for a licence would arise not only when a competitor wanted a copy the whole of an article in its entirety, but when a competitor wanted to use his own design and his own technology.
We must bear it in mind that hon. Members have tried to champion the cause of the creative designer. In such circumstances, he would still need to copy the connecting features to make his product fit. The need either to seek a licence or to negotiate the terms and conditions of a licence of right could, at best, act only as a disincentive to design innovation. With the hon. Gentleman's amendments, if the article is not a replacement part, the design right owner could refuse a licence in the first five years. That would result in a monopoly that would shut everyone else out, and that would be the ultimate disincentive.

Mr. Blair: If the "must fit"/"must match" exceptions do not apply, whoever wants to manufacture or copy a certain design must apply for the permission of the original designer in any event.

Mr. Butcher: At this stage of a Bill's consideration, amendments are tabled as alternatives in a last try to come to a consolidated and considered view. The effect of the hon. Gentleman's amendment is as I have described it. He


tests me on the practicalities of my own position. I am bound to say that there is a surety to give suppliers of component parts a clear idea of what is required of them. In general, it is in common with median protection in other parts of western Europe. In taking this route, we have listened carefully to those who argued, as the hon. Gentleman has just argued, that we should seek a much better period of protection for original designers or we should erode it almost in its entirety. The hon. Gentleman's amendments seem to face in both directions. That is not a criticism of Opposition Members. They have had to wrestle with the same dilemma. To return to the comment of the ex-chairman of the CBI committee, I believe that we have the balance about right.
6 pm
I should do the hon. Member for Sedgefield the service of replying to the other implications of his amendments. The second, related problem is that they would involve a great deal of unnecessary red tape, although I do not intend to labour that point. The hon. Member for Merthyr Tydfil and Rhymney teased me about this in Committee and has done so again today. Nevertheless, it is true that, whenever a competitor wished to produce something that fitted or matched something else, a licence would be required. In some circumstances he would be entitled to a licence of right, but he would still have to negotiate the terms and conditions.
We are working—I hope—to create a larger, more open, more competitive market. The thought of industry having to negotiate licences on every occasion as a precondition of competition does not merely irritate me or lead me to question the bureaucracy involved—it makes my blood run cold. It is simply not true that there are large areas of industry in which there will be no argument about licences. I have been involved with design protection for some years and one thing is crystal clear—there is controversy and argument wherever one looks.
Under the Bill as drafted, the licence of right provisions will come into play only when a competitor wishes to copy an entire article or that part of an article for which there is design freedom and for which an alternative design is possible. They will not apply whenever somebody wishes to compete, as would be the case under the proposals of the hon. Member for Sedgefield. The difference in the number of times that licences would be needed under the two sets of proposals would be many orders of magnitude. To me, that difficulty is of itself fatal to both the hon. Gentleman's proposals.
There are other detailed but no less important problems with the hon. Gentleman's amendments. For example, when is a replacement part not a replacement part? The hon. Gentleman made a valiant stab at a definition, but it is important to bear in mind that that question will have to be answered as each article is made. A single article cannot be "primarily made" as a replacement part. Amendment No. 227 states:
an article is manufactured as a replacement part if it is primarily made for use as a replacement".
But it either is or is not made as a replacement part. I shall not go into that at length; I am sure that the hon. Member for Sedgefield does not wish me to reinterpret his amendment for him at this stage.
My hon. Friend the Member for Bromsgrove again spoke eloquently in defence of the "must match" condition that he seeks for the original manufacturer. Reference has been made to the possibility of the consumer being duped—for instance, a supplier taking a margin on what may be sold as an accredited spare panel from the original manufacturer. As the hon. Member for Hodge Hill reminded us, that is perhaps more within the remit of other legislation. Misleading the consumer can be dealt with in that way.
With regard to safety, there are the general safety requirement and the British standards. I accept those arguments, and the insurance industry is highly interested in them, although there are times when it finds replacement parts fitted by non-original manufacturers perfectly acceptable for insurance purposes. I am familiar with the example given by the hon. Member for Hodge Hill—that of Quinton Hazell and his exhaust pipes. We discussed exhaust pipes at great length in Committee and at the current rate of progress we shall probably still be discussing them at 4 am tomorrow. Many companies begin their lives offering the customer cheaper alternatives and then move up market to become considerable and respected members of the industrial community.
I have tried not to recast the arguments used in Committee in exactly the same way or on the same basis. The Opposition will, however, expect a reply from me on two important questions, and this is the last opportunity for me to give the information that they have demanded.
I was asked what evidence we had that the European Commission would object to our increasing the term of design protection or removing the exceptions. I accept that there is no published evidence in recent Commission documents or elsewhere, but we discussed the matter with the Commission in the run-up to the Bill. The Commission had already objected to the excessive protection for functional designs given by United Kingdom copyright and was equally concerned that any new design law should not move out of line with protection elsewhere in the Community.
The Commission was satisfied with our proposals on this basis but made it clear that additional protection might well lead to a formal complaint under the European Community treaty. That does not amount to being dictated to by the European Commission, because 10 years' protection, with appropriate exceptions and licensing arrangements, represents what we regarded as necessary in any event. It shows, however, that there is no truth in the allegation that we are giving less protection than the rest of the Community.
Several references were made to design protection in Germany and the basic facts were largely correct. There is protection for basic designs under a utility model or petty patent system. There are also large numbers of design registrations; the Opposition were absolutely right about that. The essential point, however, is that neither of those forms of protection is equivalent to the design right protection provided by the Bill. Petty patents are granted only for inventive designs and registrations are possible only where the appearance of the design matters. A large number of designs, especially for spare parts, do not fall into either category, but they would be protected in the United Kingdom when the Bill becomes law although they are not protected in Germany.
I hope that I have met the points raised by my hon. Friend the Member for Bromsgrove and by the Opposition


and that hon. Members will not seek to divide the House on an amendment which is not just illogical but impracticable.

Mr. Blair: I entirely accept that these are difficult matters of judgment and I welcome the contributions of the hon. Member for Bromsgrove (Sir H. Miller) and my hon. Friend the Member for Birmingham, Hodge Hill (Mr. Davis). I repeat, however, that the problem must not be seen merely as one concerning car spare parts. There is a great deal more to "must fit"/"must match" and design right than that. The Opposition have been accused of seeking a monopoly for the original manufacturer, but the basis of our proposal is that no such monopoly would exist. Rather, there would be a licence of right from the first day. That seems to take care of many of the objections, apart from the Minister's last point. The amendment would not affect the vast majority of original manufacturers or, indeed, of component manufacturers, so the car industry could operate very much as before, but under licence of right.
The Minister found great difficulty in defining a replacement part, but that is as nothing compared with the difficulties of "must fit"/"must match", which give rise to enormous problems as to how much of a replacement part would have protection and the absurdity of some parts of the part having protection while others did not. If that exception is not applied, there is total protection over the entire period of the design right term. The Minister accused the Opposition of facing both ways on this. In fact, we are merely seeking a compromise between the interests of industry in rewarding its investment and the interests of the consumer.
It is important to attain that compromise if we can. The only argument that has been advanced against it is that it would be too bureaucratic. I cannot believe that that is right. Licences of right and the concept of licensing apply throughout industry. Licences of right for the last five years of a design right are written into the Bill. Any function or design has a licence of right in its last five years, so provision is already made for licences of right in the Bill.
I cannot believe that sensible people could not come to agreement in the vast majority of cases. Where they cannot, a body of case law will grow up from appeals, and the position will become clearer. We cannot allow manufacturing industry and its forward pattern of investment to be distorted, because a view is taken based simply on the problems of the motor industry.
Our amendment is the best way forward as it provides for a workable compromise. We believe that it has the support of those in industry, who should know best how to look after their own affairs, and that the concept of licences of right for spare parts will protect the consumer.
Nothing that the Minister has said convinces us that those arguments are wrong, so I ask my hon. Friends to support the amendment in the Lobby

Question put, That the amendment be made:—

The House divided: Ayes 132, Noes 257.

Division No. 441]
[6.11 pm


AYES


Allen, Graham
Barnes, Harry (Derbyshire NE)


Anderson, Donald
Barron, Kevin


Archer, Rt Hon Peter
Beckett, Margaret


Armstrong, Hilary
Bennett, A. F. (D'nt'n &amp; R'dish)


Ashton, Joe
Bidwell, Sydney


Banks, Tony (Newham NW)
Blair, Tony





Boyes, Roland
Lloyd, Tony (Stretford)


Bradley, Keith
McAllion, John


Bray, Dr Jeremy
McAvoy, Thomas


Brown, Nicholas (Newcastle E)
McKay, Allen (Barnsley West)


Buchan, Norman
McKelvey, William


Buckley, George J.
McLeish, Henry


Caborn, Richard
McTaggart, Bob


Campbell, Ron (Blyth Valley)
McWilliam, John


Campbell-Savours, D. N.
Madden, Max


Clark, Dr David (S Shields)
Mahon, Mrs Alice


Clarke, Tom (Monklands W)
Marek, Dr John


Clay, Bob
Martin, Michael J. (Springburn)


Clwyd, Mrs Ann
Martlew, Eric


Coleman, Donald
Meacher, Michael


Corbett, Robin
Michael, Alun


Corbyn, Jeremy
Michie, Bill (Sheffield Heeley)


Cousins, Jim
Millan, Rt Hon Bruce


Crowther, Stan
Mitchell, Austin (G't Grimsby)


Cryer, Bob
Morgan, Rhodri


Cummings, John
Morley, Elliott


Cunliffe, Lawrence
Morris, Rt Hon A. (W'shawe)


Darling, Alistair
Mowlam, Marjorie


Davies, Ron (Caerphilly)
Mullin, Chris


Dewar, Donald
Murphy, Paul


Dixon, Don
O'Brien, William


Dobson, Frank
Page, Richard


Doran, Frank
Patchett, Terry


Douglas, Dick
Pike, Peter L.


Dunwoody, Hon Mrs Gwyneth
Powell, Ray (Ogmore)


Eadie, Alexander
Prescott, John


Eastham, Ken
Quin, Ms Joyce


Ewing, Harry (Falkirk E)
Rees, Rt Hon Merlyn


Field, Frank (Birkenhead)
Roberts, Allan (Bootle)


Fields, Terry (L'pool B G'n)
Rogers, Allan


Fisher, Mark
Rooker, Jeff


Flannery, Martin
Ross, Ernie (Dundee W)


Flynn, Paul
Rowlands, Ted


Foot, Rt Hon Michael
Sheerman, Barry


Foster, Derek
Short, Clare


Foulkes, George
Skinner, Dennis


Fraser, John
Smith, Andrew (Oxford E)


Galloway, George
Smith, C. (Isl'ton &amp; F'bury)


Garrett, Ted (Wallsend)
Smith, Rt Hon J. (Monk'ds E)


George, Bruce
Soley, Clive


Godman, Dr Norman A.
Spearing, Nigel


Griffiths, Win (Bridgend)
Taylor, Mrs Ann (Dewsbury)


Grocott, Bruce
Turner, Dennis


Heffer, Eric S.
Vaz, Keith


Hinchliffe, David
Wall, Pat


Hogg, N. (C'nauld &amp; Kilsyth)
Wardell, Gareth (Gower)


Hoyle, Doug
Wareing, Robert N.


Hughes, Robert (Aberdeen N)
Welsh, Michael (Doncaster N)


Hughes, Roy (Newport E)
Williams, Rt Hon Alan


Hughes, Sean (Knowsley S)
Williams, Alan W. (Carm'then)


Illsley, Eric
Wilson, Brian


Ingram, Adam
Winnick, David


John, Brynmor
Wise, Mrs Audrey


Jones, Barry (Alyn &amp; Deeside)
Worthington, Tony


Kinnock, Rt Hon Neil



Lamond, James
Tellers for the Ayes:


Leighton, Ron
Mrs. Llin Golding and Mr. Frank Haynes.


Litherland, Robert





NOES


Adley, Robert
Bellingham, Henry


Alexander, Richard
Bendall, Vivian


Alison, Rt Hon Michael
Bennett, Nicholas (Pembroke)


Amess, David
Benyon, W.


Arbuthnot, James
Biggs-Davison, Sir John


Arnold, Jacques (Gravesham)
Blackburn, Dr John G.


Arnold, Tom (Hazel Grove)
Bonsor, Sir Nicholas


Ashby, David
Boscawen, Hon Robert


Ashdown, Paddy
Boswell, Tim


Atkins, Robert
Bowden, A (Brighton K'pto'n)


Atkinson, David
Bowden, Gerald (Dulwich)


Baker, Nicholas (Dorset N)
Bowis, John


Baldry, Tony
Braine, Rt Hon Sir Bernard


Banks, Robert (Harrogate)
Brandon-Bravo, Martin


Batiste, Spencer
Brazier, Julian


Beaumont-Dark, Anthony
Bright, Graham






Brown, Michael (Brigg &amp; Cl't's)
Hayward, Robert


Bruce, Ian (Dorset South)
Heathcoat-Amory, David


Bruce, Malcolm (Gordon)
Heddle, John


Buck, Sir Antony
Heseltine, Rt Hon Michael


Budgen, Nicholas
Hicks, Robert (Cornwall SE)


Burt, Alistair
Hind, Kenneth


Butcher, John
Hogg, Hon Douglas (Gr'th'm)


Butler, Chris
Holt, Richard


Butterfill, John
Hordern, Sir Peter


Carlisle, John, (Luton N)
Howard, Michael


Carlisle, Kenneth (Lincoln)
Howarth, G. (Cannock &amp; B'wd)


Carrington, Matthew
Hughes, Robert G. (Harrow W)


Carttiss, Michael
Hughes, Simon (Southwark)


Channon, Rt Hon Paul
Hunt, David (Wirral W)


Chapman, Sydney
Hunt, John (Ravensbourne)


Chope, Christopher
Hunter, Andrew


Churchill, Mr
Irvine, Michael


Clark, Hon Alan (Plym'th S'n)
Irving, Charles


Clark, Dr Michael (Rochford)
Jack, Michael


Clark, Sir W. (Croydon S)
Janman, Tim


Clarke, Rt Hon K. (Rushcliffe)
Jessel, Toby


Colvin, Michael
Johnson Smith, Sir Geoffrey


Coombs, Anthony (Wyre F'rest)
Jones, Gwilym (Cardiff N)


Coombs, Simon (Swindon)
Jones, Robert B (Herts W)


Cope, Rt Hon John
Kellett-Bowman, Dame Elaine


Cormack, Patrick
Kennedy, Charles


Couchman, James
Key, Robert


Cran, James
King, Roger (B'ham N'thfield)


Currie, Mrs Edwina
Kirkwood, Archy


Curry, David
Knapman, Roger


Davies, Q. (Stamf'd &amp; Spald'g)
Knight, Greg (Derby North)


Day, Stephen
Knight, Dame Jill (Edgbaston)


Devlin, Tim
Knowles, Michael


Dickens, Geoffrey
Knox, David


Douglas-Hamilton, Lord James
Latham, Michael


Dover, Den
Lawrence, Ivan


Durant, Tony
Lennox-Boyd, Hon Mark


Emery, Sir Peter
Lester, Jim (Broxtowe)


Evans, David (Welwyn Hatf'd)
Lilley, Peter


Ewing, Mrs Margaret (Moray)
Lloyd, Sir Ian (Havant)


Fallon, Michael
Lord, Michael


Favell, Tony
Luce, Rt Hon Richard


Fenner, Dame Peggy
McCrindle, Robert


Finsberg, Sir Geoffrey
Macfarlane, Sir Neil


Fishburn, Dudley
MacGregor, Rt Hon John


Fookes, Miss Janet
MacKay, Andrew (E Berkshire)


Forth, Eric
Maclean, David


Fowler, Rt Hon Norman
Maclennan, Robert


Fox, Sir Marcus
McLoughlin, Patrick


Franks, Cecil
McNair-Wilson, Sir Michael


Freeman, Roger
McNair-Wilson, P. (New Forest)


French, Douglas
Major, Rt Hon John


Fry, Peter
Malins, Humfrey


Gale, Roger
Mans, Keith


Gardiner, George
Maples, John


Garel-Jones, Tristan
Marlow, Tony


Gill, Christopher
Marshall, John (Hendon S)


Gilmour, Rt Hon Sir Ian
Marshall, Michael (Arundel)


Goodlad, Alastair
Martin, David (Portsmouth S)


Goodson-Wickes, Dr Charles
Maude, Hon Francis


Gorman, Mrs Teresa
Maxwell-Hyslop, Robin


Gorst, John
Meyer, Sir Anthony


Gow, Ian
Miller, Sir Hal


Gower, Sir Raymond
Mills, Iain


Greenway, Harry (Ealing N)
Mitchell, Andrew (Gedling)


Greenway, John (Ryedale)
Mitchell, David (Hants NW)


Gregory, Conal
Moate, Roger


Griffiths, Peter (Portsmouth N)
Monro, Sir Hector


Ground, Patrick
Montgomery, Sir Fergus


Gummer, Rt Hon John Selwyn
Morris, M (N'hampton S)


Hamilton, Neil (Tatton)
Morrison, Sir Charles


Hampson, Dr Keith
Morrison, Rt Hon P (Chester)


Hanley, Jeremy
Moss, Malcolm


Hannam, John
Moynihan, Hon Colin


Hargreaves, A. (B'ham H'll Gr')
Mudd, David


Hargreaves, Ken (Hyndburn)
Neale, Gerrard


Harris, David
Neubert, Michael


Haselhurst, Alan
Newton, Rt Hon Tony


Hawkins, Christopher
Nicholls, Patrick


Hayes, Jerry
Nicholson, David (Taunton)





Nicholson, Emma (Devon West)
Stern, Michael


Onslow, Rt Hon Cranley
Stevens, Lewis


Paice, James
Stewart, Allan (Eastwood)


Patnick, Irvine
Stewart, Andy (Sherwood)


Patten, Chris (Bath)
Sumberg, David


Peacock, Mrs Elizabeth
Summerson, Hugo


Porter, David (Waveney)
Taylor, John M (Solihull)


Portillo, Michael
Thompson, D. (Calder Valley)


Powell, William (Corby)
Thorne, Neil


Price, Sir David
Thurnham, Peter


Rathbone, Tim
Townend, John (Bridlington)


Redwood, John
Tracey, Richard


Riddick, Graham
Tredinnick, David


Ridley, Rt Hon Nicholas
Twinn, Dr Ian


Ridsdale, Sir Julian
Waddington, Rt Hon David


Rost, Peter
Wakeham, Rt Hon John


Ryder, Richard
Walden, George


Sackville, Hon Tom
Waller, Gary


Sayeed, Jonathan
Ward, John


Shaw, David (Dover)
Wardle, Charles (Bexhill)


Shaw, Sir Giles (Pudsey)
Watts, John


Shaw, Sir Michael (Scarb')
Wheeler, John


Shelton, William (Streatham)
Widdecombe, Ann


Shephard, Mrs G. (Norfolk SW)
Wiggin, Jerry


Shepherd, Colin (Hereford)
Wigley, Dafydd


Sims, Roger
Wilshire, David


Skeet, Sir Trevor
Winterton, Mrs Ann


Smyth, Rev Martin (Belfast S)
Winterton, Nicholas


Soames, Hon Nicholas
Wood, Timothy


Speller, Tony
Young, Sir George (Acton)


Spicer, Sir Jim (Dorset W)



Spicer, Michael (S Worcs)
Tellers for the Noes:


Squire, Robin
Mr. Alan Howarth Mr. David Lightbown.


Steel, Rt Hon David



Steen, Anthony

Amendment accordingly negatived.

Mr. Rowlands: I beg to move amendment No. 322, in page 93, line 22, at end insert—
'in determining whether a design is commonplace those features which are not visible to the naked eye shall be taken into account'.

Madam Deputy Speaker (Miss Betty Boothroyd): With this it will be convenient to take amendment No. 323 in, page 93, line 22, at end insert—
'(4A) A design is not commonplace for the purposes of this part if the creation of the design required a substantial input on the part of the designer of that design in terms of time and cost.'.

Mr. Rowlands: I remind the House that clause 205(4) says:
A design is not 'original' for the purposes of this Part if it is commonplace in the design field in question at the time of its creation.
Hon. Members who served on the Committee will know that we had considerable discussion, not about the semantics, but about the real meaning of the words "original" and "commonplace". I remind the Minister that, on 14 June, he said:
I am not able to accept the hon. Gentleman's amendment. I do not think that it was designed to be accepted, but we wish to achieve its objective. If 'commonplace' will not suffice, we shall try to find another solution.
A little later he said:
I am not wedded to the word 'commonplace'. Amendment No. 407, tabled by the hon. Member for Merthyr Tydfil and Rhymney, is a good attempt to refine the expression.
Therefore, he offered me some hope that he would study those words and their definitions.
The Minister further said:
The meaning of 'commonplace' is a matter of ordinary English.


I believe it is, but it is not an easily definable term when relating to design matters. The Minister continued:
Whether a design is commonplace will be determined on the facts of the case. If we can find a better way of handling the matter, we shall do so."—[Official Report, Standing Committee E, 14 June 1988, c. 575–766.]
We considered several illustrations in Committee, one of which was the armature which I am holding. It is for a Hoover washing machine. We asked whether it would be a commonplace part or whether it would attract a design right. For example, we asked whether the design of this door seal of a Hoover washing machine, which I am holding, is commonplace or whether it attracts originality and, therefore, a design right. Those are reasonable illustrations of the difficulty of matching practicality to legislation. The Minister assured us that he was not wedded to those words and therefore he felt that was a case for looking for another solution. That is what I am now trying to do.
I am rather disappointed about the events that have fallen between Committee and Report stage. The Minister and his Department—I am sorry to make this criticism—but especially his Department, seem to have taken a completely passive, if not negative, view of the efforts made by others to define or redefine the words "original" and "commonplace". The Department just stood back and said, "If you lot can come up with any ideas to redefine the words, we will look at them." It has made little or no effort to join in a partnership of consideration to redefine the terms in subsection (4) and to decide whether the design of the Hoover armature or of the door seal would be a commonplace or an original design.
Various industries and companies went to the Department and put up one or two suggestions which the Department, understandably, took apart. I have not, therefore, tabled amendments such as were discussed in Committee, but instead I have introduced two new ideas. Actually, they are not new and I shall describe their parentage.
Before doing so, I remind the House that this is not just a matter of semantics and fiddling around with words—it is an important and serious issue. There is a fundamental difference of interpretation of the Bill as it stands as to what will attract design right and what will not. The Minister believes that many more parts in industry will attract design right and will be considered original, as opposed to commonplace, than at present, especially in a company such as the one I am privileged to represent in Merthyr Tydfil—Hoover. It believes, however, that parts of its washing machines would be deemed in law to be commonplace, but the Minister and his officials may believe them to be original. It is not just a matter of semantics—it is one of considerable concern as there are differences of interpretation.
Having reminded the House of the two illustrations that I gave in Committee, I turn now to my two amendments, which seek to redefine first the word "commonplace" and secondly the word "original". Amendment 322 suggests that
in determining whether a design is comonplace those features which are not visible to the naked eye shall be taken into account".
6.30 pm
Where did I get those words? They did not come from any outside lobby. They were not from industry or from an axe-grinding group. I took them almost word for word

from the Department's own notes on the clause. especially those to the subsection. The valuable notes that were given to hon. Members serving on the Committee should be made available to any hon. Member. I draw attention to paragraph 3, which helped us to amplify and explain subsection (4) and the word "commonplace", and which stated:
It is important to note that there is no requirement that the design be aesthetically pleasing for design right to subsist. Nor is there any requirement for the design to be visible to the naked eye. Thus, for example, a design of the aesthetic appearance of a table lamp, the functional form of the external and internal parts of a pump and the functional internal layout of an integrated circuit microchip could all give rise to design right.
That is why I am travelling with the hope that the Minister will accept my amendment. The words
not visible to the naked eye
are taken from the Minister's Department's interpretation of the subsection, so they have impeccable parentage. If the Department regards something that one cannot see as being relevant in design terms, it is worth stating that in the clause.

Mr. Dafydd Wigley: As the hon. Gentleman knows, I have an interest in Hoover as I am a previous employee. Following our debate on this point in Committee, the British Automotive Parts Promotion Council has raised with me the point that stopping water coming out and dampening down harmonic vibrations would be a technical argument, as opposed to one relating to the shape of the configuration, and that as such it would not be a criterion for design right protection. How does the hon. Gentleman respond to that? I believe that we are both trying to go in the same direction.

Mr. Rowlands: The hon. Gentleman is absolutely right. If he recalls, the issue of the design of the Hoover door seal for a washing machine arose on the basis of the amendment that I was moving, which would state that technical factors would be taken into account in determining whether a part or the design of a part attracted design right. We used the door seal to illustrate that point. The very design of that part had an important effect on the whole performance of the machine. The Minister commented that he was not against the objective of my amendment when we discussed it in Committee.
Amendment No. 322 about
not visible to the naked eye
is a way of recognising that the technical features are factors which could attract design right. Therefore, although to some extent I am going back to earlier arguments, on this occasion I am resting my case on the Department's own words. In paragraph 3 on the note of the clause, the Department made the clear point that the functional character of the design and not just its look, and therefore, in my view, its technical efficiency, could be a deciding factor whether the design is "commonplace" or "original". The hon. Member for Caernarfon (Mr. Wigley) is making an important point. I believe that my amendment reaches towards that principle.
Amendment No. 323 tackles the issue slightly differently. It tries to establish that
A design is not commonplace for the purposes of this part if the creation of the design required a substantial input on the part of the designer of that design in terms of time and cost.
That would capture the designs of the two parts that I have used as illustrations, but it would also cover many other parts. I believe that it expresses in words what the Minister


claims that the Bill states. I got those terms from a letter that the Minister sent to the Association of Manufacturers of Domestic Electrical Appliances. In an interesting and important paragraph, rejecting one suggestion from the industry, the Minister replied:
As I explained in Committee, and as I understand my officials said during your recent meeting,"—
that is a reference to the meeting between AMDEA and his officials—
the term 'original' by itself does not require a design to be in any way different from what is widely known and used. Consequently the term 'commonplace' is needed simply to prevent mundane, routine, everyday, well-known designs from acquiring design right.
I am sure that we all understand that because it is a reasonable statement. What interested me is that the letter continued:
For example, if someone were to 'design' a piece of uniform hollow tubing, such a design would be unlikely to pass the 'commonplace' test, and I would hope you would agree that this is the right result. It is, of course, not a question of whether the article is commonplace, but rather whether the design is commonplace,
The key words are:
I think if a company had spent two years designing something the result would be hardly likely to be a commonplace design.
Therefore, in responding to a series of suggestions by the industry about what the words "commonplace" and "original" mean, the Minister's letter gave an important interpretation of the difference. He introduced the concept that if the design of the part had taken two years, it would be highly unlikely that it would be a commonplace design. That prompted me immediately to table amendment No. 323, which turns into legislative form the interpretation placed on the difference between commonplace and original in the Minister's letter to the industry. Therefore, I travel hopefully on both these amendments because of their excellent parentage.

Mr. Thomas McAvoy: As my hon. Friend knows, I too am a former employee of the Hoover company, having worked at the Cambuslang plant. I am sure that my hon. Friend will agree that the substantial input into design and investment by the Hoover company in Cambuslang and in Merthyr has resulted in stable employment in those areas, and that the Government's proposals put that at risk.

Mr. Rowlands: I am grateful to my hon. Friend. I seem to be surrounded by former employees of Hoover. I never had the privilege of having a start at Hoover. I never qualified and I do not think that the company would have let me near its factories. However, I am sure that both my hon. Friend and the hon. Member for Caernarfon speak from experience.
I am simply saying that I do not see how the Government and the Minister could object to my two amendments because one comes from a note on the clause issued by the Minister's own Department and the second comes virtually straight from a letter that the Minister sent to the industry explaining and interpreting what "design", "commonplace" and "original" mean and the difference between them.
As we all know, the problem is that Hansard, letters from Ministers and notes on clauses are not the law and have no legislative force when it comes, as no doubt it will

in the not-too-distant future, to a court case about what is commonplace and what is original. Therefore, I am seeking to make sure that what the Minister intends or what the Minister tells people that he is intending is translated into legislative form.

Mr. Bob Cryer: I am interested in these two amendments because they seem to provide the sort of protection to which a manufacturer should be reasonably entitled. I was not a member of the Committee and there is sometimes a sort of understanding that only hon. Members who served on the Bill Committee have a contribution to make. That is not the case.
I should like the Minister to elaborate on the case of a manufacturer of motor car pistons in my constituency. That manufacturer is Hepworth and Grandage Ltd. Are motor car pistons regarded as commonplace? If they are it would mean that any manufacturer could make or replace Hepworth and Grandage pistons. That firm has developed pistons that cause engines to use less oil than more conventional pistons. For example, the firm uses hardening in sections of the aluminium pistons. Such a difference is not often visible to the naked eye and would fall within the criteria of amendment No. 322.
Hepworth and Grandage use many and varied techniques that are also covered by amendment No. 323. The firm has spent a great deal on research and development. For example, it has fitted sets of pistons that it has designed into test engines made by manufacturers such as British Leyland and Jaguar and those engines have been run over many hours. The engines were then dismantled and the pistons carefully examined to see where wear has taken place and to see what disadvantages accrued from the design features being tested.
Such tests cost a great deal and it seems quite wrong that the design, testing and development of an object which to all intents and purposes, and certainly to the average onlooker, seems commonplace should be set to one side. Those processes might cost many hundreds of thousands of pounds and put a British manufacturer at a clear disadvantage. In any case, Hepworth and Grandage is at a clear disadvantage because it is the only major piston manufacturer left in the United Kingdom. Several have gone out of business in the past quarter of a century and we must make sure that we protect our diminishing manufacturing base.
I remind the Minister that about 2 million jobs in manufacturing have gone since 1979. There has been an onslaught on the manufacturing base that the Government inherited in 1979. We are entitled to say that manufacturers that do not simply copy other products but invest in research and development and produce products superior to others should have the right not to have their products treated as commonplace and therefore open to imitation and production by other manufacturers. Such other manufacturers may not have invested in research and development and may not employ research and development staff. Such staff are often expensive to employ because of their specialist skills.
Hepworth and Grandage is the largest private manufacturer in Bradford, with the largest number of workers. Its expertise and skill have enabled it to obtain a contract to provide pistons for the American company Buick. Because of its acknowledged position as one of the world's leading piston manufacturers it is building for Buick a piston manufacturing plant in America. That


world position has been achieved only because of its investment in research and development and for that reason I seek the Minister's assurance that amendments Nos. 322 and 323 will be accepted. If the Minister does not accept them, will he assure us that it is because there is within the Bill adequate protection for manufacturers such as Hepworth and Grandage? Will the Bill protect such a company from pirate imitations by manufacturers working on rock bottom prices and therefore able to obtain a competitive advantage?
6.45 pm
The Minister may talk about the market place being the sole criterion, but to adopt such an attitude would be extremely unfair. That is because it is easy for a manufacturer to pick up an object that it claims is commonplace and manufacture it without any research and development costs, thereby gaining a competitive advantage. That may seem attractive to the Minister, but if further research and development is needed to keep up with international competitive developments, a manufacturer such as Hepworth and Grandage will be placed at a severe disadvantage. It seems fair and reasonable to give such a company some protection.
I look to the Minister to accept the amendments that were tabled and explained in Committee and based on the words of the Minister and a briefing provided to the Committee. If the Minister does not accept the amendments, will it be because he is satisfied beyond peradventure, as the lawyers say, that the Bill provides adequate protection? Almost certainly lawyers will become involved in this legislation and our job is to try to keep the lawyers out. When there is confrontation in court because of ambiguities in legislation it means that despite all the scrutiny in Committee upstairs and in the House this place has failed to provide clear legislation that will not lead to confrontation in court.
I hope that no obscurities will exist in the legislation because of the Minister's refusal to accept the amendments that clarify and perfect the legislation in the way that my hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) has suggested. On the face of it those amendments seem to put forward very strong arguments.

Mr. Butcher: I agree with the hon. Member for Bradford, South (Mr. Cryer) that our objective must be to design—if I may use that word—the Bill so that interpretation is minimal or at best simple. As a parliamentarian of some experience, he will know that trying to do that is never easy. Sometimes the efforts of parliamentary counsel who wish to clarify matters for the lawyers confuse things for the legislators, and we have even greater difficulty understanding some of the jargon.
I shall shortly deal with the hon. Gentleman's point about that excellent company Hepworth and Grandage. Before I do that I should tell the House that my motivation was to try to find a better word than "commonplace". After consultation with my officials who consulted all these infamous draftsmen, I wrote to the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) and said—I hope he did not think I was being flippant—that we had difficulties in finding another word that gave the benefits he sought to achieve.
The hon. Gentleman criticised us for being passive, but that is a little unfair. Over many years my Department has been active in attempting to draw up clear and workable

provisions for the Bill. The word "commonplace" was chosen not at random but after much consideration, including the deliberations of a working group which looked at the protection of semiconductor chip design at European Community level. We have looked a: the matter again to be sure, but try as we might we have not seen a better formulation.
The hon. Member for Merthyr Tydfil and Rhymney teased us about whether the notes on clauses and their relationship to my letter to him and subsequent observations meant that we were entirely convinced and not only agreed with his objectives but agreed that we should try to find another way. The passage that the hon. Gentleman quoted from the notes on clauses is. as he said, an explanation of the meaning of "design". Design does not need to be visible to receive design right. Amendment No. 322 is about the meaning of "commonplace", and that meaning is not assisted by adding other words out of context. The hon. Gentleman is still worried about the effect of the exclusion of commonplace designs. As I explained in Committee, the word "original" has the same meaning as that used in copyright in part I of the Bill—that is, independently created and not a copy.
By itself, the word "original" does not require the design to be in any way different from what is already widely known and used, and that is too generous a test for the acquisition of rights in designs. We therefore need a test to prevent well-known, everyday, standard designs from acquiring rights. That is all that the commonplace test is intended to do. I said in Committee that I was open to suggestions about how that might be expressed in the Bill and the hon. Member for Merthyr Tydfil and Rhymney is now seeking to refine the meaning of the word "commonplace". I believe that the word "commonplace" expresses our intention well. I have considered the hon. Gentleman's suggestions carefully, but I do not think that they would help—indeed, amendment No. 323 could be positively harmful.
Amendment No. 322 would require features that are not visible to the naked eye to be taken into account when assessing whether a design is commonplace. The problem is that that does not need saying. Design right is not restricted to visible features. There is nothing in the wording of the Bill that limits design right to features that are visible to the naked eye. Those features that are not visible to the naked eye, whether because they are internal, concealed features in the finished product or because they are too small to be seen, are covered by the Bill and, as a result, will automatically be taken into account at all levels. The only possible effect of stating the obvious—which is what the amendment seeks to do—is to cast doubt where none existed before.
Amendment No. 323 is slightly different. The Bill does not achieve what the hon. Member for Merthyr Tydfil and Rhymney wants, and I do not think that it should. If the amendment were accepted, a designer who had spent a lot of time and money to come up with a well-known, everyday, commonplace design would get rights in that design. That is not the sort of design that we want to encourage.
The test must be an objective one—is the design an everyday, commonplace design? If it is, there is no basis for an intellectual property right. It is for that reason, and not because we have not tried, that I have been resisting the amendment.

Mr. Rowlands: I should like to answer the Minister's comments on amendment No. 323. I tabled the amendment to establish that time and input should be a factor in determining whether a design was commonplace or original because in his letter, the Minister said specifically:
I think if a company had spent two years designing something the result would be hardly likely to be a commonplace design.
Yet he has now said to the House that that is not the sort of design that he wants to encourage. Did he mean the words when he wrote them, and is he now withdrawing them, or what? I do not understand his argument. I have used his own words and criteria in the amendment.

Mr. Butcher: We are now interpreting plain English and attempts to make the English plainer or clearer, It is perfectly legitimate for me, or any hon. Member, to consider designers who make a considerable effort. The pistons which were mentioned by the hon. Member for Bradford, South (Mr. Cryer), although an allegedly commonplace article, required considerable effort, whether in heat treatment or a characteristic which gave a particular performance.
If I identified as commonplace a paper clip or a piece of straight tubing that had been chopped into certain lengths, I believe that that would be a fairly accurate assessment. In saying that items that need far more intellectual effort and investment are not commonplace, I am not saying anything that the House under normal circumstances would find unacceptable.
The hon. Member for Bradford, South made a fine speech on behalf of the prime employer in his constituency and asked whether the motor pistons that it produced were commonplace. I am afraid that that is the wrong question. As I have explained on several occasions, the question should be whether the piston design is commonplace. Some pistons will receive design right protection and some will not. It will depend on whether the design features employed are or are not commonplace.
The hon. Member for Bradford, South mentioned a particular feature of a particular piston and said that it deserved protection; that is an argument that we have to meet. As I understand the example, the feature concerned was the material used, not the shape and configuration of the pistons.
Design right applies only shape and configuration and it cannot and should not protect materials and composition. Such features should be protected under the patent system if they have sufficient merit.
I agree with the contention of the hon. Member for Bradford, South. Massey-Ferguson in my own constituency is very concerned with the behaviour of mixtures of metals at very high temperatures; and it uses special heat treatment processes to produce special features in its components.

Mr. Wigley: The Minister said that design right applied to shape and configuration. Surely that is the whole point of the amendment, which seeks to apply design right to what is out of sight, which is excluded at present.

Mr. Butcher: We have wrestled with this matter for a long time. It is my duty, and it was the duty of the Committee, to try to make clear what would happen in the aftermath of our decision. Having gone through the matter with my officials and listened to advice from outside, I

believe that the use of the word "commonplace" will satisfy the requirement to deal with this thorny duty that I thought the House had placed upon us. Unfortunately, this is our last chance to do that, so we must treat the matter very seriously, and I think that this is the very best shot that we can make.

Mr. Cryer: Does not the Minister agree that if there are to be differences from the commonplace in design, the relevant materials must be involved? For example, motor car pistons often work at high temperatures. The design shape is retained by virtue of the materials that are used, and they are part of the design. The piston is designed to maintain the compression of gases in the combustion chamber and to prevent the excess burning of oil from the crank case chamber. Designers therefore cannot ignore the material which, under pressure and heat, will change in one instance but remain true to the original design in the other, thus showing a superior design. The materials are not entirely separate from the shape and design. Amendment No. 322 deals with features that are not apparent to the naked eye, and materials must be among those.

Mr. Butcher: I think that we are arguing at cross purposes. There is not much between us on the question of the interplay between materials and processes of manufacturing, but there is a distinction between those features and the shape and configuration of the article. Consider the most modern techniques of precision casting or heat treatment; certain shapes may become possible only if such technologies and techniques are introduced.
Let me return to the practicalities. Someone may come along and try to rip off the shape of a piston into which a lot of work has gone. A competitor can do that only if the performance of the rip-off part is the same under certain engineering conditions. It is therefore legitimate to argue that we are discussing related issues. It is certainly true that some design options become possible because of the performance of certain materials, but the protection that the hon. Gentleman seeks is already there. A Taiwanese operation might want to supply rip-off, straight-copy pistons to given specifications but it would, I think, have great difficulty in convincing General Motors, for example, that the performance of those pistons—the aspects in which General Motors would be interested—would be adequate.
The hon. Member for Merthyr Tydfil and Rhymney tested me further and said that the letter I had sent to him showed that I was inconsistent. I said that it was unlikely that anyone who spent two years and a lot of money on a design would come up with something commonplace, but that it was just possible that he might. As I have said, in that case he should not get protection. There is nothing inconsistent between the letter that I wrote to industry and what I said today.

7 pm

Mr. Rowlands: I am extremely puzzled and rather disappointed by the Minister's reply. I would have thought that the Minister would have reached out to us more in an attempt to assure us, if nothing else, about the cases that we have quoted.
My hon. Friend the Member for Bradford, South (Mr. Cryer) has spoken about the close interrelationship between a design and the materials used to create it. The


Hoover washing machine door seal took a considerable time to design, but its success also depends upon the materials used to create it. Without such a combination there would be many problems regarding the performance of that machine.
We have sought to emphasise the aspects of a design that are not naked to the eye and it is a strong case to make—it was mentioned in the Department's report. The time and effort that is put into a design should also be taken into account when determining whether something is commonplace or original.

Mr. Cryer: The Minister has said that a rip-off imitation could be easily detected, but does my hon. Friend agree that that is not necessarily true? An original manufacturer of pistons may produce one that lasts for 90,000 miles and provides good service. The rip-off piston may only provide good service for between 20,000 and 30,000 miles, but by that time it is possible that the source of the rip-off will have been forgotten.

Mr. Rowlands: It is true that a copy may work perfectly well for a given period of time, but when it breaks down the consumer will not complain to the copyist, but to the manufacturers, for example Hoover. The same is true if a piston or other car part breaks down.
I shall not push this amendment. The Minister says one thing, but industry says another. We give the Minister notice that if we find that we were right and he was wrong after the Bill has been passed, we shall demand amending legislation as quickly as possible. We shall have to wait and see. I hope that we are wrong and that the Minister is right, but if not we shall have to come back to it.
In the light of the arguments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27

MEANING OF "INFRINGING COPY"

Amendment made: No. 162, in page 12, line 26, at end insert—
'section (Transfer of copies of works in electronic form) (2) (further copies, adaptations, &amp;c. of work in electronic form retained on transfer of principal copy),'.—[Mr. Butcher.]

The Parliamentary Under-Secretary of State for Corporate Affairs (Mr. Francis Maude): I beg to move amendment No. 242, in page 12, line 31, leave out from beginning to 'or'.

Mr. Deputy Speaker (Sir Paul Dean): With this it will be convenient to discuss the following amendments:No. 6, in page 27, line 26, leave out clause 69.

No. 234, in clause 69, page 27, line 26, leave out from 'private' to end of line 35 and insert—
'purposes of—

(a) a recording of a broadcast or cable programme, or a copy of such a recording, or
(b) a photograph of a television broadcast or cable programme, or a copy of such a photograph,
does not infringe any copyright in the broadcast or cable programme.
(2) An act done with a view to the thing made being sold or let for hire, played or shown in public, broadcast or included in a cable programme service shall be treated for the purposes of this section as not done for private purposes.'.

No. 316, in page 27, line 29, leave out—
'or in any work included in it'.

Government amendment No. 243.

Amendment No. 25, in schedule 2, page 152, line 21, leave out from 'purpose' to end of line 23.

Mr. Maude: This amendment is about time shifting and it is a subject that has given pleasure to many people. I am bound to say that I have some hesitation tonight in proposing to the House that we should remove from the clause that element that has given so much innocent fun to so many.
In Committee, when I moved the proposal to legalise private recordings which were kept for 28 days or less, I did not foresee the excitement that that modest proposal would generate. It was regrettable that those who expressed opinions so vividly and so swiftly left out the usual preliminary stage of finding out what the proposal was about. I was astonished, for example, only a day or so after the Committee had reached its decision, to read in the newspaper the remarks of a Queen's counsel who thought that the Government's proposal was outrageous and that it was quite wrong to use the criminal law to prohibit home copying. The propositions that we were invoking the criminal law and that in some way we were taking steps to restrict home copying were wrong, as a cursory examination of the proposal would have disclosed.
I am bound to say that, in the middle of all the innocent fun that was had, some serious harm was done by those who reacted in a somewhat hysterical way to the proposal.
I received a number of letters from people, especially from the elderly, who were in genuine distress and anxiety at the spectre of police invading their homes to check the age of their video recordings. The pundits and the politicians who made those fanciful suggestions must or should have known how far from the truth they were.
Let us be quite clear about the present position. It is a breach of copyright to copy any television programme except a live broadcast of, for example, a sporting event. Therefore it is legal to record the test match live in the afternoon—should there be any play and should anyone want to—but not legal to record the highlights in the evening. Presently, virtually all video recording of television programmes is in breach of copyright law. The amendment that was passed by the Committee was thus a liberalising measure and not a restrictive one. Perhaps I should read that out again at dictation speed to make sure that it is understood. The amendment made legal much more than is at present legal. It sought to bring within the law those people who are at present outside it.
Because it is widely accepted that the practice of time shifting—the recording of a programme in order to watch it at a more convenient time—does no harm to the copyright owner, we have sought to make it legal. Because the building up of video libraries by individuals may well cause detriment to the copyright owner, it is necessary under the Berne convention that copyright law should continue to apply to those recordings.
Clause 69 will allow recording of a broadcast or cable programme solely for the purpose of enjoying it at a more convenient time without infringement of any copyright, whether of the broadcast or cable programme or of any work included in it. Under its provisions, Members of this House could set their video recorders to record this evening's television broadcasts in order to view them tomorrow morning or at the weekend and they would not infringe any copyright.
When the clause was introduced in Committee, we added the 28-day proviso since we thought this would


provide an additional safeguard to copyright owners against practices which damage their interests. The rest, as they say, is history. The rule gave some people a lot of fun, some of it perhaps at my expense. I do not begrudge them their fun all that much.
It occurs to me that there may be those—no doubt the same people who criticised the first proposal—who will seek to present this amendment as a U-turn. They would be as wrong now as they were then. The 28-day proposal made the law more liberal than it is now. By removing the 28-day proviso the law will be more liberal still. So, far from making a U-turn, this is a further move in exactly the same direction.
Clause 69 minus the 28-day rule still only permits time shifting. It does not permit the recording and long-term retention for repeated viewing of television programmes. Such practices may, and in the case of broadcast feature films do, damage the copyright owner's interest by their impact on the rental market, and to a lesser extent on cinema exhibition.
The adoption of amendments Nos. 242 and 243 will allow the public to record television programmes for the purposes of time shifting. In passing I assume that amendment No. 25 is an error and was tabled in over-enthusiasm to remove the 28-day period. The 28-day period in schedule 2, which amendment No. 25 would delete, is concerned with the broadcasters' so-called "ephemeral right" only and is set out in clause 67.
I commend the amendment to the House.

Mr. Mark Fisher: We have heard a delightful and extremely subtle speech from the Minister. Anyone coming into this debate might have felt that he was treating us to an example of time shifting since there were times during his speech when I thought I was back in Committee listening to exactly the same speech that he gave us about 28 days ago.
Perhaps people will wish to delete both speeches and erase them from their recorder and library of video tapes of the Minister's favourite speeches. Hon. Members who have been treated to his speech before found it a little rich that he tried to pass this off as a great liberalising measure. He may have convinced himself, but I doubt whether he will convince many members of the public who have suffered anxiety and distress on this score. He limited legality to 28 days and said that from then on people would be in breach of the law, which caused anxiety, so it was difficult for him to say that it was an example of his great liberalising mood. However, he kindly said that he did not begrudge us our fun—adding slowly, "all that much." His hon. Friends behind him may not have seen his icy, stretched smile when he said that. Nevertheless, the words came out even if the eyes and mouth remained static.
The truth is that the Government and the Minister got themselves into the most almighty mess in Committee and were justly ridiculed there and, the next day, in the press. One of the more serious newspapers referred to the Minister as a parliamentary jester. Many hon. Members might think that my hon. Friend the Member for Newham, North-West (Mr. Banks) fills that role to everyone's satisfaction, but obviously the Minister was trying to compete with him. He certainly awoke to fame the next morning, but it was fame of an unfortunate sort.

Being a reasonable and sensible man, he set to work with his civil servants to review the matter and find some alternative. The difficulty was that he had considered the obvious solution—to delete subsection (2)—in Committee and categorically refused it. I do not want to rub salt in his wounds, but it is worth repeating his words: that deleting subsection (2)
would be in breach of the Berne Convention and it would not be a reasonable balance between the rights of copyright owners and the users."—[Official Report, Standing Committee E, 9 June 1988; c. 479.]
Having so categorically ruled out the one thing that would get him off the hook, the Minister has had difficulty in recent weeks squaring the position. I am delighted to say that he has now come forward with an amendment that will delete subsection (2), in spite of the fact that, as far as I can see, nothing has changed. Certainly, the Berne convention has not. If the Minister believed this was in breach of it then, it still is now. Nor has the Government's view of the convention changed; nor has the balance between the rights of consumers and users. In any case, the Government have come to their senses and now propose to leave out subsection (2). If hon. Members look at the Order Paper they will notice that it must be enormously encouraging for the Government to know that they have the unqualified support of the hon. Member for Northampton, North (Mr. Marlow), without which no Government can survive.
Although this is a huge improvement which will relieve the anxiety and distress to which I have referred, the provision is by no means perfect yet. There are still problems. I hope the Minister understands them. The last seven words of subsection (1)—
or in any work included in it"—
mean that internal composite copyrights as part of any broadcast are still included. That presents some problems, unfairnesses and potential dangers which could, in future, become very serious.
There are still anomalies in merely deleting subsection (2). Hon. Members on both sides must understand that the Minister is legalising off-air recording, but tape-to-tape recording will remain illegal. The Minister may have some way out of that, in which case I hope he will tell us about it. The distinction between off-air recording and tape-to-tape is not easily made. Even after the Government amendment goes through, tape-to-tape will be illegal, and off-air recording legal. Is that reasonable? How can the Minister possibly enforce it? It is as unenforceable as his original 28-day ruling. 
7.15 pm
There is a further difficulty, in that the rights of copyright owners will be harmed. Libraries of film, opera and other broadcast work will be able to be built up, to the financial detriment of copyright owners. That is in breach of the Berne convention, article 9 of which states that unless there is compensaion such actions are serious matters. So, although this gets the Minister out of being ridiculed by the popular press and most people in pubs all over the country, the new provision does not deal with these and other anomalies and problems which remain.
The difficulties are genuine. We all want time shifting for domestic purposes to be legal—so much is common sense. Broadcasters want that, too. However, we should not ignore the rights of copyright owners and of composers which, in five or 10 years' time, when there will be different technology, more tape-to-tape machines, more


stereos with better quality of recording for sound and more satellite services, will be more complex than we can anticipate now. So we must get it right now. I fear that although we have freed ourselves of one difficulty with this amendment, which we welcome, we have not solved all the problems.
Possibly the only way to deal with this is the tape levy, which we shall consider later. It is a solution that other European countries have come up with. But for the time being, we welcome the Minister's having admitted, with some dignity, the error of his former ways on time shifting—though not perhaps with the enormous grace and humour for which we had hoped. In doing so, he has pleased a great many people.

Mr. Simon Coombs: I join the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) in congratulating my hon. Friend the Minister on the way in which he has escaped from his dilemma and spoken about the subject.
I had the misfortune not to catch the eye of the Chairman of the Selection Committee and was not a member of the Standing Committee. I learned of this proposal on a Friday morning while mowing my lawn. I received a phone call from my local newspaper reporter who asked me for a comment. It is said that we can all remember where we were when the late President Kennedy was assassinated. I can vividly remember the sense of shock on coming to the phone and being asked to comment on a proposal by the Government that we should impose a 28-day restriction on the recording of programmes from the television.
My immediate reaction is recorded in the Swindon Evening Advertiser as having been an expression of surprise, which was an understatement. I used rather stronger language than that. I said that I thought the proposal would be unenforceable and that it was very unlikely that a civil action would be taken by film manufacturers—in the case of films shown on television—or by the television companies which caused the films to be shown. I wondered aloud to my friend the reporter how the evidence would be obtained which would show when recordings had been collected, and the most recent occasion when they had been used, which would call into question the number of days for which they had been kept.
The hon. Member for Stoke-on-Trent, Central put the argument clearly and I shall not repeat it. Time shifting cannot reasonably be limited to 28 days. I received a letter from the wife of an army officer who is serving abroad. She said that she would like to be able to keep programmes that she had recorded until her husband's return from his next tour of duty abroad, which would not be within 28 days. Under the Bill, that would constitute a more reasonable time, but it would not be within 28 days.
People have told me in my surgery that they have stayed within the law all their lives but wonder whether they will be put outside it by this provision. However innocent and well intentioned my hon. Friend's proposal may have been, it caused genuine distress to a large number of people. What is time shifting? Under the Bill, even with subsection (2) deleted, we are told that it is keeping a recording until a more reasonable or convenient time in order to watch a product that has been recorded. Why is that not the case with a tape library compiled by someone who is busy in his normal life but considers that he would like to watch a film in the future which he does not have

time to watch at present? It could be argued that tape libraries fall within this general principle of time shifting, and I invite my hon. Friend to comment on that.
I am delighted that the Government have not looked for half measures and have not tinkered with the subsection, but have agreed to delete it completely. That is much the best way of resolving the problem. I welcome the Minister's conversion, and I enjoyed the way in which he justified it in terms of greater liberalisation. It is interesting that the Government are prepared to change their mind on the matter not once, but twice. It gives me hope that they will listen to our arguments on another important aspect of the Bill. When we come to the debate on home taping, we must persuade the Government to change their mind on that aspect, too. In the end, it is not the change of mind that matters but getting the Bill right. In this instance, they have got it right—for the time being. In the other case, we still have an argument to make. I am pleased to support the amendment.

Mr. Page: I welcome the withdrawal of the subsection. I was a member of the Committee—I heard my 5 per cent. of the debate—and I was grateful to the Whip on duty who released me from the Committee five minutes before the end, which enabled me to turn a cowardly cheek towards the more ribald comments of my less-than-respectful constituents during that weekend.
But the withdrawal of the subsection does not mean the disappearance of the problem of breach of copyright. In the absence of compensation to copyright owners under clause 69, it is doubtful whether it complies with article 9 of the Berne convention. We shall have more than enough time during the debate on the blank tape levy to deal with those points, but I hope that my hon. Friend the Minister will consider the protection of copyright and the introduction of some recompense to copyright owners when the Bill proceeds to another place.

Mr. Maude: I appreciate the dilemma in which my stance put the hon. Member for Stoke-on-Trent, Central (Mr. Fisher). He could not make up his mind whether to carp or gloat, so he did a bit of both. But his carping was misplaced. He asked about my remarks in Committee on the Berne convention. The convention says that copying must not conflict with normal exploitation of the work, or unreasonably prejudice the legitimate interests of the copyright owner. Even without subsection (2), the clause is limited to time shifting and, as we have said on previous occasions, time shifting does not conflict with normal exploitation or unreasonably prejudice legitimate interests.
Subsection (2) was included to reinforce the fact that subsection (1) does not permit indefinite retention of recordings, but we now accept that specifying an arbitrary limit would produce the wrong result in many cases of genuine time shifting. Removal of subsection (2) legitimises genuine cases, but practices going beyond time shifting will continue to infringe copyright. The Berne convention must be given an interpretation that produces a realistic and practical result, and we consider that our approach in this difficult area does that.
My hon. Friend the Member for Swindon (Mr. Coombs) said that his constituents who had always abided by the law were anxious that my proposals would put them outside the law. That is not the case. Anyone who has been recording television programmes has been in breach of


copyright law. The proposal that I moved in Committee would have brought some of them within the law. It would not have put outside the law anyone who is at present inside it. It is important to get that straight. It is not a question of withdrawing the amendment that we moved in Committee, which was a liberalising measure. Removing the 28-day subsection is a further liberalising measure. Both move in the same direction: bringing people who carry out an essential innocent activity within the law. I commend the amendment to the House.

Amendment agreed to.

New clause 3

APPLICATTON FOR REVIEW OF ORDER AS TO LICENCE

'.—(1) Where the Copyright Tribunal has made an order under section 123 or 124, the licensing body or the persons entitled to the benefit of the order may apply to the Tribunal to review its order.

(2) An application shall not be made, except with the special leave of the Tribunal—

(a) within twelve months from the date of the order or of the decision on a previous application under this section, or
(b) if the order was made so as to be in force for 15 months or less, or as a result of the decision on a previous application under this section is due to expire within 15 months of that decision, until the last three months before the expiry date

(3) The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable in the circumstances.'.—[Mr. Butcher.]

Brought up, read the First and Second time, and added to the Bill.

New clause 4

EFFECT OF ORDER OF TRIBUNAL AS TO LICENCE

'.—(1) Where the Tribunal has made an order under section 123 or 124 and the order remains in force, the person entitled to the benefit of the order shall if he—

(a) pays to the licensing body any changes payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and
(b) complies with the other terms specified in the order,
be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.

(2) The benefit of the order may be assigned—

(a) in the case of an order under section 123, if assignment is not prohibited under the terms of the Tribunal's order; and
(b) in the case of an order under section 124, if assignment was not prohibited under the terms of the orginal licence.'.—[Mr. Butler.]

Brought up, read the First and Second time, and added to the Bill.

New clause 5

PROVISIONS WITH RESPECT TO CERTAIN DESIGNS REGISTERED BEFORE COMMENCEMENT

'.—(1) Where a design is registered under the Registered Designs Act 1949 in pursuance of an application made after 12th January 1988 and before the commencement of this Part which could not have been registered under section 1 of that Act as substituted by section 255 above—


(a) the right in the registered design expires ten years after the commencement of this Part, if it does not expire earlier in accordance with the 1949 Act, and
(b) any person is, after the commencement of this Part, entitled as of right to a licence to do anything which would otherwise infringe the right in the registered design.

(2) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the registrar on an application by the person requiring the licence; and the terms so settled shall authorise the licensee to do everything which would be an infringement of the right in the registered design in the absence of a licence.

(3) In settling the terms of a licence the registrar shall have regard to such factors as may be prescribed by the Secretary of State by order made by statutory instrument.

No such order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

(4) Where the terms of a licence are settled by the registrar, the licence has effect from the date on which the application to the registrar was made.

(5) Section 11B of the 1949 Act (undertaking to take licence of right in infringement proceedings), as inserted by section 260 below, applies where a licence is available as of right under this section, as it applies where a licence is available as of right under section 11A of that Act.

(6) Where a licence is available as of right under this section, a person to whom a licence was granted before the commencement of this Part may apply to the registrar for an order adjusting the terms of that licence.

(7) An appeal lies from any decision of the registrar under this section.

(8) This section shall be construed as one with the Registered Designs Act 1949.'.—[Mr. Butcher.]

Brought up, read the First and Second time, and added to the Bill.

New clause 6

TRANSFER OF COPIES OF WORKS IN ELECTRONIC FORM

'(1) This section applies where a copy of a work in electronic form has been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to copy the work, or to adapt it or make copies of an adaption, in connection with his use of it.

(2) If there are no express terms—
(a) prohibiting the transfer of the copy by the purchaser, imposing obligations which continue after a transfer, prohibiting the assignment of any licence or terminating any licence on a transfer, or
(b) providing for the terms on which a transferee may do the things which the purchaser was permitted to do,
anything which the purchaser was allowed to do may also be done without infringement of copyright by a transferee; but any copy, adaptation or copy of an adaptation made by the purchaser which is not also transferred shall be treated as an infringing copy for all purposes after the transfer.

(3) The same applies where the original purchased copy is no longer usable and what is transferred is a further copy used in its place.

(4) The above provisions also apply on a subsequent transfer, with the substitution for references in subsection (2) to the purchaser of references to the subsequent transferor.'.—[Mr. Butcher.]

Brought up, read the First and Second time, and added to the Bill.

New clause 7

PERIOD AFTER WHICH REMEDY OF DELIVERY UP NOT AVAILABLE UNDER PART I

'(1) An application for an order under section 98 (order for delivery up in civil proceedings) may not be made after the


end of the period six years from the date on which the infringing copy or article in question was made, subject to the following provisions.

(2) If during the whole or any part of that period the copyright owner—
(a) is under a disability, or
(b) is prevented by fraud or concealment from discovering the facts entitling him to apply for an order,
an application may be made at any time before the end of the period of six years from the date on which he ceased to be under disability or, as the case may be, could with reasonable diligence have discovered those facts.

(3) In subsection (2) "disability"—
(a) in England and Wales, has the same meaning of the Limitation Act 1980;
(b) in Scotland, means legal disability within the meaning as in the Prescription and Limitation (Scotland) Act 1973;
(c) in Northern Ireland, has the same meaning as in the Statute of Limitations (Northern Ireland) 1958.

(4) An order under section 108 (order for delivery up in criminal proceedings) shall not, in any case, be made after the end of the period of six years from the date on which the infringing copy or article in question was made.'.—[Mr. Butcher.]

Brought up, and read the First time.

Motion made and Question proposed, That the clause be read a Second time.—[Mr. Butcher.]

Mr. Deputy Speaker (Sir Paul Dean): With this it will be convenient to discuss the following: Government new clause 8—Order as to disposal of infringing copy or other article.

Government new clause 9—Jurisdiction of county court and sheriff court: Part I.

Government new clause 10—Period after which remedy of delivery up not available under Part II.

Government new clause 11—Order as to disposal of illicit recording.

Government new clause 12—Jurisdiction of county court and sheriff court: Part II

Government new clause 13—Order as to disposal of infringing article, &amp;c.

Government new clause 14—Jurisdiction of county court and sheriff court: Part III.

Government amendments Nos. 164 to 169, 174 to 177, 180 to 183, 185 to 190, 193, 195 to 198.

Amendment No. 279, in clause 288, page 133, line 40, leave out from 'court' to end of line 5 on page 134, and insert
'before which a person is charged with an offence under section 58A may, whether he is convicted of the offence or not, if it appears to the court that he has in his possession, custody or control any goods or material which are
(a) good or material in respect of which any offence under section 58A has been committed; or
(b) goods of the same description as those in respect of which the offence was committed, or material similar to that in respect of which the offence was committed, bearing a mark identical to or nearly resembling that in relation to which the offence was committed; or
(c) goods or material which fall within paragraph (a) or paragraph (b) of section 58A(1) and whose resemblance to the goods or material bearing a registered trade mark is such as to satisfy the court that they have been created with the intent mentioned in paragraph (b) of section 58A(2) (whether or not the creator is before the court);
order that the goods shall be forfeited and destroyed or otherwise dealt with as the court may think fit.'.

Government amendments Nos. 199 to 203.

Mr. Iain Mills: The Minister knows my strong views on counterfeiting and the need for forfeiture. It is highly desirable to ensure that all articles identified as counterfeits are removed from circulation. As I understand it, clause 288 allows for forfeiture only when a person has been convicted.
I am grateful to the Minister and his officials for listening to my comments on the matter when we met recently, and I had hoped that he might have had some sympathy or a more wide-ranging power. It is important to summarise the fact that forfeiture should not be altered on the sole ground that counterfeit goods have been found under the present powers in the Bill. If the goods are counterfeit, forfeiture should be possible.

Mr. Butcher: My hon. Friend's amendment would make it possible for a criminal court to order forfeiture of a person's property whether or not he had been convicted of an offence. Such provisions appear in earlier clauses in relation to copyright and performance rights, but not here in relation to counterfeits.
There is a fundamental difference between counterfeits and articles that infringe copyright or performance rights. Counterfeits are essentially trade mark infringements that are created or used with the purpose of passing them off as being genuinely associated with a legitimate user of the mark in question. Whether that additional element is present is a question for the court to determine, and it cannot do so on the basis of goods or materials alone. It depends on the state of mind of the accused. If there has been no conviction, we can see no way in which the courts could, in law, distinguish between counterfeits and purely civil trade mark infringements. It would be wholly wrong to give criminal courts jurisdiction over purely civil infringements. That is the function of the civil courts and the procedure applying there.
For that reason only, I cannot accept my hon. Friend's amendment as drafted.

Question put and agreed to.

Clause read the Second time, and added to the Bill.

New clause 8

ORDER AS TO DISPOSAL OF INFRINGING COPY OR OTHER ARTICLE

'(1) Where an infringing copy or other article has been delivered up in pursuance of an order under section 98 or 108, or has been seized and detained in pursuance of the right conferred by section 99, an application may be made to the court—
(a) for an order that it shall be forfeited to the copyright owner or destroyed or otherwise dealt with as the court may think fit, or
(b) for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the court shall consider whether other remedies are available in an action for infringement of copyright would be adequate to compensate the copyright owner and to protect his interests.

(3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the copy or other articles, and any such person is entitled—
(a) to appear in proceedings for an order under this section, whether or not he was served with notice, and
(b) to appeal against any order made, whether or not he appeared;
and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the


end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

(4) Where there is more than one person interested in a copy or other article, the court shall make such order as it thinks just and may (in particular) direct tht the article be sold, or otherwise dealt with, and the proceeds divided.

(5) If the court decides that no order should be made under this section, the person in whose possession, custody or control the copy or other article was before being delivered up or seized is entitled to its return.

(6) References in this section to a person having an interest in a copy or other article include any person in whose favour an order could be made in respect of it under this section or under section (Order as to disposal of illicit recordings) or (Order as to disposal infringing article, &amp;c.) of this Act or section 58BA of the Trade Marks Act 1938 (which make similar provision in relation to infringement of rights in performances, design and trade marks).'.—[Mr. Butcher.]

Brought up, read the First and Second tirne, and added to the Bill.

JURISDICTION OF COUNTY COURT AND SHERIFF COURT: PART I

'.—(1) In England, Wales and Northern Ireland a county court may entertain proceedings under—
section 98 (order for delivery up of infringing copy or other article),
section 101(5) (order as to exercise of rights by copyright owner where exclusive licensee has concurrent rights), or
section (Order as to disposal of infringing copy or other article) (order as to disposal of infringing copy or other article),
where the value of the infringing copies and other articles in question does not exceed the county court limit for actions in tort.

(2) In Scotland proceedings for an order under any of those provisions may be brought in the sheriff court.

(3) Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.'.—[Mr. Butler.]

Brought up, read the First and Second time, and added to the Bill.

New clause 10

PERIOD AFTER WHICH REMEDY OF DELIVERY UP NOT AVAILABLE UNDER PART II

'(1) An application for an order under section 190 (order for delivery up in civil proceedings) may not be made after the end of the period of six years from the date on which the illicit recording in question was made, subject to the following provisions.

(2) If during the whole of any part of period a person entitled to apply for an order—
(a) is under a disability, or
(b) is prevented by fraud or concealment from discovering the facts entitling him to apply,
an application may be made by him at any time before the end of the period of six years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.

(3) In subsection (2) "disability"—
(a) in England and Wales, has the same meaning as in the Limitation Act 1980;
(b) in Scotland, means legal disability within the meaning of the Prescription and Limitation (Scotland) Act 1973;
(c) in Northern Ireland, has the same meaning as in the Statute of Limitations (Northern Ireland) 1958.

(4) An order under section 194 (order for delivery up in criminal proceedings) shall not, in any case, be made after the end of the period of six years from the date on which the illicit recording in question was made.'.—[Mr. Butcher.]

Brought up, read the First and Second time, and added to the Bill.

New clause 11

ORDER AS TO DISPOSAL OF ILLICIT RECORDING

'(1) Where an illicit recording of a performance has been delivered up in pursuance of an order under section 190 or 194, or has been seized and detained in pursuance of the right conferred by section 191, an application may be made to the court—
(a) for an order that it shall be forfeited to such person having performer's rights or recording rights in relation to the performance as the court may direct, or shall be destroyed or otherwise dealt with as the court may think fit, or
(b) for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the
court shall consider whether other remedies available in an action for infringement of the rights conferred by this Part would be adequate to compensate the person or persons entitled to the rights and to protect their interests.

(3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the recording, and any such person is entitled—
(a) to appear in proceedings for an order under this section, whether or not he was served with notice, and
(b) to appeal against any order made, whether or not he appeared;
and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

(4) Where there is more than one person interested in a recording, the court shall make such order as it thinks just and may (in particular) direct that the recording be sold, or otherwise dealt with, and the proceeds divided.

(5) If the court decides that no order should be made under this section, the person in whose possession, custody or control the recording was before being delivered up or seized is entitled to its return.

(6) References in this section to a person having an interest in a recording include any person in whose favour an order could be made in respect of the recording under this section or under section (Order as to disposal of infringing copy or other article) or (Order as to disposal infringing article, &amp;c.) of this Act or section 58BA of the Trade Marks Act 1938 (which makes similar provision in relation to infringement of copyright, design right and trade marks).'.—[Mr. Butcher.]

Brought up, read the First and Second time, and added to the Bill.

New clause 12

JURISDICTION OF COUNTY COURT AND SHERIFF COURT: PART II

'.—(1) In England, Wales and Northern Ireland a county court may entertain proceedings under—
section 190 (order for delivery up of illicit recording), or
section (Order as to disposal of illicit recording) (order as to disposal of illicit recording),
where the value of the illicit recordings in question does not exceed the county court limit for actions in tort.

(2) In Scotland proceedings for an order either of those provisions may be brought in the sheriff court.

(3) Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.'.—[Mr. Butcher.]

Brought up, read the First and Second time, and added to the Bill.

New clause 13

ORDER AS TO DISPOSAL OF INFRINGING ARTICLE, &C.

'(1) Where an infringing article or other thing has been delivered up in pursuance of an order under section 222, an application may be made to the court—


(a) for an order that it shall be forfeited to the design right owner or destroyed or otherwise dealt with as the court may think fit, or
(b) for a decision that no such order should be made.

(2) In considering what order (if any ) should be made, the court shall consider whether other remedies available in an action for infringement of design right would be adequate to compensate the design right owner and to protect his interests.

(3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the article or other thing, and any such person is entitled—

(a) to appear in proceedings for an order under this section, whether or not he was served with notice, and
(b) to appeal against any order made, whether or not he appeared;
and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

(4) Where there is more than one person interested in an article or other thing, the court shall make such order as it thinks just and may (in particular) direct that the thing be sold, or otherwise dealt with, and the proceeds divided.

(5) If the court decides that no order should be made under this section, the person in whose possession, custody or control the article or other thing was before being delivered up or seized is entitled to its return.

(6) References in this section to a person having an interest in an article or other thing include any person in whose favour an order could be made in respect of it under this section or under section (Order as to disposal infringing copy or other article) or (other as to disposal of illicit recordings) of this Act or section 58BA of the Trade Marks Act 1938 (which make similar provision in relation to infringement of copyright, rights in performances and trade marks).'.—[Mr. Butcher.]

Brought up, read the First and Second time, and added to the Bill.

New clause 14

JURISDICTION OF COUNTY COURT AND SHERIFF COURT: PART III

'.—(1) In England, Wales and Northern Ireland a county court may entertain proceedings under—
section 222 (order for delivery up of infringing article, &amp;c),
section (Order as to disposal of infringing article, &amp;c.) (order as to disposal of infringing article, &amp;c), or
section 226(5) (application by exclusive licensee having concurrent rights),
where the value of the infringing articles and other things in question does not exceed the county court limit for actions in tort.

(2) In Scotland proceedings for an order under any of those provisions may be brought in the sheriff court.

(3) Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.'.—[Mr. Butcher.]

Brought up, read the First and Second time, and added to the Bill.

New clause 16

BRITISH SHIPS, AIRCRAFT AND HOVERCRAFT: PART I

'. —(1) This Part applies to things done on a British ship, aircraft or hovercraft as it applies to things done in the United Kingdom.

(2) In this section—
"British ship" means a ship which is a British ship for the purposes of the Merchant Shipping Acts (see section 2 of the Merchant Shipping Act 1988) otherwise than by virtue of registration in a country outside the United Kingdom; and

"British aircraft" and "British hovercraft" mean an aircraft or hovercraft registered in the United Kingdom.'.—[Mr. Butcher.]

Brought up, read the First and Second time, and added to the Bill.

BRITISH SHIPS, AIRCRAFT AND HOVERCRAFT: PART II

'. —(1) This Part applies to things done on a British ship, aircraft or hovercraft as it applies to things done in the United Kingdom.

(2) In this section—
"British ship" means a ship which is a British ship for the purposes of the Merchant Shipping Acts (see section 2 of the Merchant Shipping Act 1988) otherwise than by virtue of registration in a country outside the United Kingdom; and
"British aircraft" and "British hovercraft" mean an aircraft or hovercraft registered in the United Kingdom.'.[Butcher.]

Brought up, read the First and Second time, and added to the Bill.

New clause 18

CROWN USE OF DESIGN RIGHT: COMPENSATION FOR LOSS OF PROFIT

'. —(1) Where Crown use is made of a design, the government department concerned shall pay—
(a) to the design right owner, or
(b) if there is an exclusive licence in force in respect of the design, to the exclusive licensee,
compensation for any loss resulting from his not being awarded a contract to supply the articles made to the design.

(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing capacity; but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing capacity was under-used.

(4) No compensation is payable in respect of any failure to secure contracts for the supply of articles made to the design otherwise than for the services of the Crown.

(5) The amount payable shall, if not agreed between the design right owner or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under section 242; and it is in addition to any amount payable under section 232 or 233.

(6) In the application of this section to Northern Ireland, the reference in subsection (5) to the Treasury shall, where the government department concerned is a Northern Ireland department, be construed as a reference to the Department of Finance and Personnel.'.—[Mr. Butcher.]

Brought up, and read the First time.

Mr. Butcher: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker: With this it will be convenient to take the following: Government new clause 19—Crown use of registered design: compensation for loss of profit

Amendment No. 14, in clause 231, page 102, line 41, at end insert—
'(d) purposes of protecting the environment.'.

No. 15, in page 102, line 41, at end insert—
'(d) civil defence purposes'.

Government amendment No. 99.

Amendment No. 32, in page 102, line46, after 'matters', insert—
'and which agreement relates specifically to the articles concerned or to equipment embodying such articles'.

No. 26, in page 103, line 11, at end insert—


'"competent authority" means a Secretary of State, a Minister of State or a Parliamentary Under-Secretary of State acting in person.'.

No. 28, in page 103, line 19, leave out
'either before or after the use and'.

No. 29, in page 103, line 21, at end insert—
'but may not be given after the use'.

No. 27 in clause 232, page 103, line 26, leave out subsection (1) and insert—
'(1) Subject to this section, Crown use of a design by a government department, or by a person authorised by a government department, under section 231 shall be made only after a competent authority has given notice in writing to the government department concerned authorising such use.
(1A) No authorisation shall be given under this section unless the competent authority has notified the design right owner in writing of the intention to use or authorise the use of his design for the services of the Crown and such authorisation shall not be given unless either—
(a) at the expiration of three months beginning with the date of service of the notice on the design right owner no agreement between the design right owner and the government department has been con-cluded; or
(b) before the expiration of said period the design right owner has given notice in writing to the government department concerned that no such agreement is likely to be concluded within that period.
(1B) An authorisation under this section may be given by a competent authority without compliance with subsection (1A) of this section in any case where the government department concerned.
(a) is unable to ascertain the identity of the design right owner on reasonable enquiry; or
(b) where, and for so long as, it appears to the competent authority that the disclosure of use of the design for the services of the Crown would be prejudicial to the safety of the State.
(1C) Where Crown use is made of a design, the government department concerned shall, in cases not falling within paragraphs (a) and (b) of subsection (1B) of this section, give to the design right owner such information as to the nature and extent of use as he may from time to time require.'.

Government amendments Nos. 335 to 337, 245, 249 and 157.

Mr. Butcher: New clauses 18 and 19 and amendments Nos. 335 to 337,245 and 249 deal with the issue of how the compensation to be paid for Crown use is to be calculated, especially in relation to lost profits. That was a point raised in Committee by my hon. Friend the Member for Canterbury (Mr. Brazier) and we think that it is right that there should be compensation for lost manufacturing profit. In this respect, a rights owner will be able to claim compensation both for lost trading profit and for losses in respect of underused capital assets. Of course, any claimant must be in a position to supply the Crown from his existing capacity; he will not be able to claim losses by arguing that he could supply the Crown by building a new factory, and he will not be able to claim for further losses. For example, where a foreign Government order from the same source as the Crown, the claimable loss will not include lost profits in respect of foreign orders that go elsewhere because the Crown has gone elsewhere.
I am sure that those new arrangements will make a very significant contribution towards ensuring that the Crown user provisions do not act in any way as a disincentive to those who would invest in R and D. Unlike a number of other issues arising on Crown use, they are concerned only with the practical, economic effects of Crown use and do

not depend on the nature of the property right involved. We are therefore proposing to make the necessary change in respect of design right, registered designs, and patents, which will mean that any manufacturer can be sure that he will receive fair and proper compensation, irrespective of the type of right he holds.
Another point raised in Committee by my hon. Friend was the width of the provisions on foreign defence. His point was that the Bill would allow any article to be supplied to a foreign Government wherever we had any sort of agreement with the Government concerned. Amendent No. 99 includes the words "in pursuance of", which has exercised my hon. Friend to a considerable extent, the idea being that there must be a connection between what is in the agreement and what is supplied to the Government concerned. I do however recognise that my hon. Friend may see amendment No. 99 as a case of one step forward, one step back, because it refers to "agreements or arrangements".
The inclusion of a reference to "arrangements" will cover any memorandum of understanding that we have with a foreign Government. That is unavoidable because the United Kingdom has very few formal "agreements" with other countries. In this regard, "agreements" is a legal expression and most of the United Kingdom's dealings with other countries will not qualify as an "agreement". The expression "arrangement" is therefore quite proper. However, my hon. Friend made the point that many of these "arrangements" are cast in very broad terms, without any reference to particular equipment. His argument is that, as a consequence, clause 231 will give the Ministry of Defence carte blance to supply any equipment to those countries.
I can, however, tell my hon. Friend that the Ministry of Defence does not intend to rely on general, non-specific memoranda of understanding that do not define the equipment to be supplied. It is concerned here with the more specific arrangements that refer to particular equipment, and it would not normally expect to use the Crown use powers to supply equipment to foreign Governments without giving the rights owner prior notification, which is the key point for my hon. Friend.
I appreciate that my hon. Friend would prefer to see all that written into the Bill, but we have found it impossible to distinguish in statute between the different types of "arrangements". I must therefore ask my hon. Friend to accept what I have said about the Ministry of Defence not seeking to abuse the unavoidable width of the provision.

Mr. Julian Brazier: I should repeat the declaration of interest that I made to the Committee. Before I came to the House I worked as a management consultant and several of my clients were in the defence industry. However, I severed all financial ties with them when I was elected to the House.
I thank my hon. Friend the Minister for the considerable amount of time that both he and his officials have put into the area of Crown user provisions, and I welcome the introduction of new clause 18 and amendment No. 249. The House will recall that my concern with the Crown use provision in clauses 231 to 233, relating to the Crown's rights to seize design rights outside emergency situations, was that such powers accidentally strangle the goose that lays the golden eggs. Companies will invest their own money in design only if they feel that they will benefit from the results. Therefore,


I welcome new clause 18, which, as my hon. Friend rightly said, provides for a proper level of compensation if the Crown user rights are invoked, and which takes account of the loss of manufacturing profit and of unused manufacturing capacity that would result from the award of an order somewhere else.
I have two concerns and one question on new clause 18, and also one question on amendment No. 249. My view and the view of the industry, or such parts of it as I have been able to consult since new clause 18 was tabled, is that it provides adequate safeguards for the bulk of the defence industry, but I am concerned about the position of smaller companies which cannot afford to go to court to enjoy the protection that new clause 18 would give.
In particular, the small company is opened up to two weaknesses, one of which is being threatened: there is nothing to stop an official in a negotiation saying to a company, "If you don't cut your prices a bit further, we will get one of these slapped on you," in the knowledge that the company cannot afford to go to court. The other weakness is the problem of retrospective use. If, by accident, the Ministry should leak information and as a result do millions of pounds' worth of damage to a company, as the law is now drafted, it could retrospectively authorise that leak.
That is why I have introduced some safeguards in my suggested amendments. The first is in amendment No. 26, which says that a Minister must authorise use of these powers. That means that it will not be done lightly by an official. Secondly, amendment No. 27 imposes a three-month cooling-off period. Both amendments were incorporated in the Defence Contracts Act 1958, which dealt with technical information. The second provision ensures a clean break between a company and the Ministry on one hand and the point at which the powers are invoked on the other. Thus the small company can talk to its Member of Parliament, trade association and so on in the knowledge that that is next best to being able to go to court if the company cannot afford that. In amendments Nos. 28 and 29, the retrospective use of those powers is banned.
My hon. Friend the Minister more or less covered the other area of concern, which is the extreme width of the foreign defence purposes clause. Let me expand a little on what my hon. Friend said. Basically, there are two types of arrangements or memoranda of understanding between the British Government and foreign Governments. There are general ones that cover a blanket agreement to trade and can be signed at the drop of a hat by the Ministry, without consultation with industry. There are specific ones, which involve a specific agreement to supply a specific type of equipment. My concern, which is embodied in amendment No. 32, is that the Ministry should invoke those powers only in the second case where there is a specific agreement by the Ministry with the foreign power, covering a specific piece of equipment.
The Minister has assured us that, if powers are to be invoked for foreign defence purposes, the company will be given notice. Notice is worth something, but if the Minister is unable to accept amendment No. 32 I hope that he will go a little further and say that the Ministry will not invoke it without a specific agreement being entered into on that particular equipment.
If I read new clause 18 correctly, the compensation for which it provides is in addition to the small licence fee to which a company will be entitled under clause 232.I hope that the Minister will confirm that I am right. Amendment

249 deals with a completely new matter, a change to the Patents Act 1977. That was completely unexpected. Indeed, such a change was not asked for in Committee. It is a bold move and I welcome it. It will encourage companies to invest their money in projects that might lead to the issue of patents, in the full knowledge that they will enjoy the benefit of those patents. It is a good move and I strongly support it.
I understand the merits of this proposal for future agreements on patents, but I am not sure that the Ministry of Defence's flank is covered regarding past agreements. I hope that the Minister will confirm, either now or in writing, that past agreements are covered and that the Ministry will not have to pay compensation to companies for patent rights for which it has already paid under past agreements.
Abraham Lincoln, that great statesman, said that the introduction of patents into the American economy added the fuel of interest to the fire of innovation. My hon. Friend has gone to much trouble to meet my requests about design rights and he has taken a very bold step regarding patents. The defence industry will be much healthier for it. More defence companies will be willing to put their money up front. I congratulate him.

Mr. Frank Doran: I am pleased that the hon. Member for Canterbury (Mr. Brazier) has modified his position since Committee, when he thought that the clause would
effectively destroy our armed forces' re-equipment programme in the next century."—[Official Report, Standing Committee E, 16 June 1988, c. 602.]
My conversion will not be quite so dramatic.

Mr. Brazier: If the hon. gentleman looks at my words, he will see that I said that the clause unamended would do that. I tabled amendments and the Government have gone a long way towards meeting my criticism.

Mr. Doran: My conversion will not be quite so dramatic, but I welcome the compensation arrangements in the new clause.
As for amendments Nos. 14 and 15, clause 231(2) introduces an interesting element. For some years, the Government have had the power to override design right and patents in the interests of defence. They have now introduced the power to override design right for what subsection (2)(c) refers to as "Health Service purposes." The point was made forcibly in Committee that this was an interesting concept for a Conservative Government, and we teased the Minister about the effect, had such a clause been introduced by a Labour Government. It opens up the possibility of local health authorities using the powers. There is nothing to prevent them from doing so. They act as agents of a Government Department and they would be entitled to ignore the design rights of the drugs industry.
The two amendments deal with other important matters that affect the public interest—the defence of the realm, foreign defence purposes and health service purposes. It is important that the Government should also consider the use of these powers for the purpose of protecting the environment. The Select Committee on Agriculture is to publish a report tomorrow that we understand will be fairly critical of the Government's response to Chernobyl. We may in future be faced with a similar tragedy to that of Chernobyl in this country. The clause is restricted to foreign defence purposes and the


defence of the realm. It says nothing about civil defence purposes. I hope that the Minister will consider that issue. Purposes to protect the environment and civil defence purposes are two important issues.
I urge the Minister to let us have his views on that matter. I hope that he will also say how Health Service purposes, which he did not explain properly in Committee because he was slightly embarrassed by the points that were put to him, will work in practice.

Sir Geoffrey Johnson Smith: As I take a keen and active interest in defence matters, I hope that my hon. Friend the Minister will accept that the new clause will be welcomed by those who work in the defence industry. I have to declare an interest. I am associated with a subsidiary of Philips which is known as MEL. My interest is wider than that, as is my concern. My hon. Friend knows that considerable apprehension was felt in the defence industry about the possibility of this Bill being passed unamended. We live in a tougher and, rightly, more competitive world for defence equipment. It is only right that money that is wholly funded by defence companies should be treated as set out in the Bill.
My hon. Friend the Member for Canterbury (Mr. Brazier) expressed other concerns. He shows a deep appreciation of the need for defence and takes an active interest in this country's defence policy. We cannot expect to get everything at one go, but we much appreciate what has already been done.

Mr. Butcher: The House is indebted to my hon. Friend the Member for Canterbury (Mr. Brazier) for the work that he has done. It is almost unprecedented for a colleague in his position to change so much in so short a period. It involved two, and possibly three, Ministries. I witnessed the way that he went about it, not least in my office, but he was perfectly amenable and agreeable in the way that he put forward his arguments. He impressed two Government Departments simultaneously. I hope, however, that he will not mind if I refer first to amendments Nos. 14 and 15 that deal with civil defence and environmental protection.
Amendments Nos. 14 and 15 would add environmental protection and civil defence to the purposes for which the Crown use provisions could be activated. These are two important and worthy topics. I do not wish the fact that I shall advise the House to resist the amendments to be taken as decrying their significance. There are other significant areas that are not covered by the powers in clause 231, because defence and Health Service purposes are unique. For example, the soldier in the field needs to be completely familiar with his equipment, especially in difficult circumstances. That means that as far as possible the equipment must be uniform and instantly recognisable. If the new manufacturer cannot manufacture exactly to the old design, the service man may hesitate while working out how to use the equipment. In those vital moments of hesitation under battlefield conditions the battle may be lost. For defence purposes we need to be able to manufacture to an established design.
Similar considerations apply to the Health Service. Where health, or life and death, is an issue, there can be no compromise on design. The Health Service must have the

best equipment, whether it is surgical, artificial joint replacements, or whatever. The existence of a design right covering the best equipment must not prevent the health authorities from going for the best. Important as they are, environmental protection and civil defence do not have that ultimate level of immediacy. Defence and Health Service purposes bear directly upon life and liberty in a particularly final manner. In our view, neither environ-mental protection nor civil defence qualify in quite the same way.
As I have been reminded repeatedly over the past few weeks, the Crown use powers represent a limitation on the rights of designers. We should not seek to limit design right except where it is necessary in the national interest, and that is the case only in defence and the Health Service and that is why the Crown use powers should be limited to those areas.
I now come to the points raised by my hon. Friend the Member for Canterbury (Mr. Brazier) and endorsed by my hon. Friend the Member for Wealden (Sir G. Johnson Smith). It is appropriate for me to record, as I did earlier, the cogency and enthusiasm of my hon. Friend the Member for Canterbury. He first made his case in Committee and I undertook to write to him and to other members of the Committee with our conclusions. I have done that on the four points he raised in Committee. I dealt with manufacturing profit in my earlier remarks and I shall now deal with the other matters in turn.
First, on ministerial authorisation, the question whether Crown use powers should only be invoked by a Minister personally, we have been persuaded that only Ministers should invoke those powers. Vigilant hon. Members will have noticed that we have not tabled an amendment on that matter. That is because that very question was dealt with when the Defence Contracts Bill, as it then was, was before the House. The view then was—and nothing has happened since to change it—that the most appropriate way of ensuring that only Ministers exercise the power is an assurance to that effect in the House. My hon. Friend has cited the resulting Act, the Defence Contracts Act 1958 as his precedent, and it would therefore be appropriate for me to deal with the matter in the same way as it was dealt with under that precedent. Therefore, we have decided, and we shall ensure that the powers in clause 231 will be invoked only by a Minister personally, and will not be delegated.
I now turn to the cooling-off period. I have to say that we cannot accept that in the form proposed by my hon. Friend. Formal invocation of the Crown powers will happen only where there is no alternative. The very urgency of which I spoke earlier will be paramount. A cooling-off period would compromise a vital need for continuous supplies in defence or the Health Service and for that reason I am not able to agree to one. Nevertheless, I appreciate that small firms in particular may be placed at a disadvantage because they are unfamiliar with the ins and outs of Crown use power. To meet that point, we have decided that, as soon as it appears that there is a need to invoke the powers set out in clause 231, steps will be taken to ensure that people concerned are aware of the rights and obligations of both sides. I cannot of course give any commitment on how far in advance of the powers being exercised this will happen, simply because the circumstances will inevitably vary from case to case.
Nevertheless, the Ministry of Defence will always endeavour to give the firm concern as much notice as


possible of its intention to use the Crown use powers. I hope that my hon. Friend will accept that assurance, which will mean that everyone will know where they stand so that negotiations can proceed on a fair and sensible basis.
Returning to my hon. Friend's point on foreign defence, I have already explained why we cannot avoid using the expression in pursuance of an agreement or arrangement. I can only reiterate that there is nothing sinister about the expression. It has been used to define the United Kingdom's dealings in statutes going back to 1949 and earlier. I have also said, and I am happy to repeat, that the Ministry of Defence does not intend to rely on general, non-specific memoranda of understanding. That is my hon. Friend's concern. It intends to consider only those arrangements which relate to specific equipment. It would expect to give rights owners prior notification if it intends to supply equipment to a foreign Government under the Crown use powers.
That is as far as I wish to go. I am sorry that my hon. Friend has at times—and he would argue, with due cause—seen my hon. Friends in other Ministeries in a particularly bleak light. He will not be surprised if I say that his views are not as justified as he may think, but I am satisfied that they will deal sensibly and responsibly if they ever have cause to use the design right Crown use powers. It is the time-honoured way of things that my hon. Friends at the MOD have not demurred in that draft.
I shall also say a few words about retrospective authorisation. My noble Friend has already given an assurance in the other place that the Crown use provisions will not be used to legitimise someone who has deliberately infringed design right. I am happy to repeat that assurance today.
As to the question whether loss manufacturing profit compensation will be in addition to payment fees for the right, the answer is yes. On compensation on manufacturing profits, my hon. Friend asked whether the payment which industry will obtain under the new clauses is additional to the payment industry will be entitled to under clause 232 or the equivalent patent or registered design provision. I am happy to assure him that it will be an additional payment and that is expressly stated in the new clauses.
Existing patent agreements fall into two categories. Where the MOD has made a settlement with a patentee manufacturer based on the use of a privately owned patent, that manufacturer will be able to renegotiate terms for all use after commencement. Where the MOD places a contract for the development of new equipment, and the contractor makes an invention with public funds, the practice is for the contractor to retain ownership. The MOD retains the right to use the invention free of charge for the services of the Government. That practice is not expected to change.
I apologise for the length of my reply, but in Committee all members of the Committee brigaded behind my hon. Friend, and the Committee expected such a reply to be forthcoming on Report.

Question put and agreed to.

Clause read a Second time and added to the Bill.

New clause 19

CROWN USE OF REGISTERED DESIGN: COMPENSATION FOR LOSS OF PROFIT

'. —(1) In Schedule 1 to the Registered Designs Act 1949 (Crown use), after paragraph 2 insert—

"compensation for loss of profit.

2A.—(1) Where Crown use is made of a registered design, the government department concerned shall pay—
(a) to the registered proprietor, or
(b) if there is an exclusive licence in force in respect of the design, to the exclusive licensee,
compensation for any loss resulting from his not being awarded a contract to supply the articles to which the design is applied.

(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing capacity; but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing capacity was underused.

(4) No compensation is payable in respect of any failure to secure contracts for the supply of articles to which the design is applied otherwise than for the services of the Crown.

(5) The amount payable under this paragraph shall, if not agreed between the registered proprietor or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under paragraph 3; and it is in addition to any amount payable under paragraph I or 2 of this Schedule.

(6) In this paragraph—

'Crown use', in relation to a design, means the doing of anything by virtue of paragraph 1 which would otherwise be an infringement of the right in the design; and
'the government department concerned', in relation to such use, means the government department who or on whose authority the act was done.".'.

(2) In paragraph 3 of that Schedule (reference of disputes as to Crown use), for sub-paragraph (1) substitute—
(1) Any dispute as to—
(a) the exercise by a Government department, or a person authorised by a Government department, of the powers conferred by paragraph 1 of this Schedule,
(b) terms for the use of a design for the services of the Crown under that paragraph,
(c) the right of any person to receive any part of a payment made under paragraph 1(3), or
(d) the right of any person to receive a payment under paragraph 2A,
may be referred to the court by either party to the dispute.".

(3) The above amendments apply in relation to any Crown use of a registered design after the commencement of this section, even if the terms for such use were settled before commencement.'.—[Mr. Butcher.]

Brought up, read the First and Second time, and added to the Bill.

New clause 22

COPYRIGHT IN ACTS AND MEASURES

'(1) Her Majesty is entitled to copyright in every Act of Parliament or Measure of the General Synod of the Church of England.

(2) The copyright subsists from Royal Assent until the end of the period of 50 years from the end of the calendar year in which Royal Assent was given.

(3) References in this Part to Crown copyright (except in section 160) include copyright under this section; and, except


as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Crown copyright.

(4) No other copyright, or right in the nature of copyright, subsists in an Act or Measure.'.—[Mr. Butcher.]

Brought up and read the First time.

Motion made and Question proposed, That the clause be read a Second time.

Mr. Deputy Speaker: With this it will be convenient to discuss also Government new clause 23, and Government amendments Nos. 253, 254, 256 to 259 and 261 to 264.

Mr. Blair: I wish to raise just one point. This provision is obviously necessary following the separation of the Crown and parliamentary copyright. I understand that the regime is essentially that Bills will enjoy parliamentary copyright up until Royal Assent or rejection, whereas Acts of Parliament after Royal Assent will be Crown copyright. I understand that that has been done after consultation with officials from both Houses. Has the Minister received any other representations about this?

Mr. Butcher: We have received no other representations in relation to this matter.

Question put and agreed to.

Clause read a Second time and added to the Bill.

New clause 23

COPYRIGHT IN PARLIAMENTARY BlLLS

'.—(1) Copyright in every Bill introduced into Parliament belongs, in accordance with the following provisions, to one or both of the Houses of Parliament.

(2) Copyright in a public Bill belongs in the first instance to the House into which the Bill is introduced, and after the Bill has been carried to the second House to both Houses jointly, and subsists from the time when the text of the Bill is handed in to the House in which it is introduced.

(3) Copyright in a private Bill belongs to both Houses jointly and subsists from the time when a copy of the Bill is first deposited in either House.

(4) Copyright in a personal Bill belongs in the first instance to the House of Lords and after the Bill has been carried to the House of Commons to both Houses jointly, and subsists from the time when it is given a First Reading in the House of Lords.

(5) Copyright under this section ceases—
(a) on Royal Assent, or
(b) if the Bill does not receive Royal Assent, on the withdrawal or rejection of the Bill or the end of the Session:
Provided that, copyright in a Bill continues to subsist notwithstanding its rejection in any Session by the House of Lords if, by virtue of the Parliament Acts 1911 and 1949, it remains possible for it to be presented for Royal Assent in that Session.

(6) References in this Part to Parliamentary copyright (except in section 161) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Parliamentary copyright.

(7) No other copyright, or right in the nature of copyright, subsists in a Bill after copyright has once subsisted under this section; but without prejudice to the subsequent operation of this section in relation to a Bill which, not having passed in one Session, is reintroduced in a subsequent Session.'.—[Mr. Butcher.]

Brought up, read the First and Second time, and added to the Bill.

New clause 24

USE OF THE TERM "PATENT ATTORNEY": SUPPLEMENTARY PROVISIONS

'.—(1) The term "patent attorney" may be used in reference to a solicitor, and a firm of solicitors may be described as a firm of "patent attorneys", without any contravention of section 265.

(2) No offence is committed under the enactments restricting the use of certain expressions in reference to persons not qualified to act as solicitors—
(a) by the use of the term "patent attorney" in reference to a registered patent agent, or
(b) by the use of the term "European patent attorney" in reference to a person on the European list.

(3) The enactments referred to in subsection (2) are section 21 of the Solicitors Act 1974, section 31 of the Solicitors (Scotland) Act 1980 and Article 22 of the Solicitors (Northern Ireland) Order 1976.'.

Brought up, and read the First time.

Mr. Deputy Speaker: With this it will be convenient to discuss the following: New clause 15—Authorised persons for purpose of acting as patent agents etc.—
'(1) A person holding an authorisation granted by the Secretary of State under the provisions of this section is an authorised person for the purpose of carrying on the business of acting as agent for others for the purpose of—
(a) applying for or obtaining patents, in the United Kingdom or elsewhere, or
(b) conducting proceedings before the comptroller relating to applications for, or otherwise in connection with, patents.
(2) An application for authorisation by the Secretary of State may be made by an individual, partnership or body corporate.
(3) The Secretary of State may make rules:—
(a) regulating the manner in which any such application shall be made and any authorisation granted, and providing for the withdrawal, termination or suspension of any such authorisation, and
(b) regulating the competence, professional practice, conduct and discipline of authorised persons.
(4) Without prejudice to the generality of the preceding subsection, rules under this section shall:—
(a) prescribe minimum standards of general education that must have been obtained by persons who seek to hold an authorisation,
(b) prescribe any education or training to be undergone by persons who seek to hold an authorisation,
(c) require authorised persons to take out and maintain insurance with authorised insurers, and prescribe conditions which an insurance policy must satisfy, and
(d) provide for a fund to indemnify members of the public against any losses incurred as a result of the advice or actions of authorised persons.
(5) In subsection (4), "authorised insurers" means a person permitted under the Insurance Companies Act 1982 to carry on:—
(a) insurance business of class 13 in Schedule 2 to that Act; or
(b) insurance business of classes 1, 2, 14, 15, 16 and 17 in that Schedule.
(6) Rules under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.

Amendment No. 18, in clause 263, page 119, line 10, leave out from beginning to 'carry' in line 11 and insert 'A person shall not'.

Amendment No. 229, in page 119, line 16, after 'patents', insert
', unless he is a registered patent agent, a solicitor, or an authorised person holding an authorisation under the provisions of section [authorised persons for purpose of acting as patent agents etc.]'.

Amendment No. 20, in page 120, line 1, leave out clause 265, and insert—
'(1) An individual shall not practise, describe himself, or hold himself out or permit himself to be described or held out as, or under any name, title, addition, or description which states or implies that he is, a patent agent or a patent attorney unless he is a registered patent agent.
(2) A partnership shall not practise, describe itself or hold itself out or permit itself to be described or held out as, or under any name, title, addition or description which states or implies that it is, a firm of patent agents or patents attorneys unless all the partners are registered patent agents or the partnership satisfies such conditions as may be prescribed for the purposes of this section.
(3) A body corporate shall not practise, describe itself or hold itself out or permit itself to be described or held out as, or under any name, title, addition or description which states or implies that it is, a firm of patent agents or patent attorneys unless—
(a) all the directors of the body corporate are registered patent agents or the body corporate satisfies such conditions as may be prescribed for the purposes of this section; or
(b) in the case of a company which began to carry on business as a patent agent before 17th November 1917, a director or the manager of the company is a registered patent agent and the name of that director or manager is mentioned as being so registered in all professional advertisements, circulars or letters issued by or with the company's consent on which its name appears.
(4) No individual, partnership, or body corporate shall take or use any name, title, addition or description, nor permit the use of any name, title, addition or description which states or implies that the individual, partnership, or body corporate is authorized by or is in any way connected with the Patent Office.
(5) This section is not contravened by the use of the term "European patent attorney" or "European patent agent" in the circumstances specified in section 266.
(6) A person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale; and proceedings for such an offence may be begun at any time within a year from the date of the offence.'.

Government amendments Nos. 108, 284, 285, 109 and 286.

Amendment No. 228, in clause 269, page 123, leave out lines 12 to 16 and insert—
'(c) a person whose authorisation has been withdrawn, terminated or suspended;".

Mr. Butcher: New clause 24 and amendments Nos. 284 to 286 concern the use of the expression "patent attorney". At present, this term as such is not in general use in the United Kingdom, although I understand that solicitors specialising in patent matters sometimes refer to themselves as "patent attorneys", particularly when dealing with foreign clients. Patent agents are, however, currently inhibited from using the term by the Solicitors Acts, which make it an offence for an unqualified person to pretend to be a solicitor. It is arguable that the use of "patent attorney" by a non-lawyer would contravene these provisions.
As far as possible, the Bill has attempted to maintain the status quo on the use of titles by those providing patent services in the United Kingdom. However, since it was felt to be highly likely that the newly-legalised unqualified patent practitioners would, in the absence of a specific prohibition, adopt the term "patent attorney" as an alternative to the restricted title "patent agent" the Bill provides that it is to be an offence for a person who is not

a registered patent agent to call himself a "patent attorney". The question whether, under the Solicitors Acts, a registered patent agent could do so is left open.
Following representations made to us by the solicitors' profession, we now realise that that approach fails in its objective of maintaining the status quo. In fact, the balance has shifted significantly away from solicitors by banning them from using the title "patent attorney". There are good reasons for allowing patent agents and solicitors to use the title. Following consultations with the professional bodies involved, that is what we have decided to do. I am pleased to say that both the professions are able to agree to the common-sense approach.

8 pm

Mr. Doran: Apparently, word is on the tapes that the Minister will be moving to another job. I congratulate him on that move and I welcome the fact that he is able to complete the Bill. When we realised who was to be his successor, it was a tremendous relief to those of us involved in the Bill that the Minister will be able to see it through.
There is serious concern about what the Government intend to do. At present, the office of patent agent is well known. It is regulated, there are strict entrance requirements and there is registration, which ensures that unregistered patent agents are an unknown concept in Britain. Obviously, solicitors can act as patent agents. After an Office of Fair Trading inquiry in 1986, the Government seemed to have accepted the recommendation that there should be deregulation in this area also. I will not say that I oppose the concept of deregulation: monopolies are there to be broken. If there was a monopoly of patent agents, I would not expect the Government to sit on their hands once the monopoly had been examined.
The Government's proposals have caused severe disquiet. There was a serious and long debate on this matter in Committee and I do not propose to rehearse all the details, because I know that we are under pressure of time. However, it is important to draw out one or two points.
One of the major reasons for breaking up any monopoly would be consumer protection. It is difficult to see that consumers will be protected by this set of proposals. The Bill prohibits the use by individuals or partnerships of the expressions "patent agent" and "patent attorney". However, that will not prevent the spread of what I regard as unscrupulous operators.
The Minister accepted that we would have a two-tier system where those who could afford it would seek the services of the fully registered and qualified patent agent or attorney and those who could not or did not want to afford them could seek advice in a sort of black market, which would be totally unregulated. The only restriction would be that those who practise in that area would not be entitled to call themselves patent agents. That is totally opposed to the interests of consumers. For that reason, we have tabled new clause 15, which would oblige the Secretary of State to seek in some way to regulate that part of the market.
We raised an analogy in Committee, and we had the benefit of the experience of my hon. Friend the Member for Great Grimsby (Mr. Mitchell), who had been heavily involved in what we might regard as the deregulation of


the legal profession. He made a significant contribution to the passing of the Administration of Justice Act 1985, which created the new concept of the licensed conveyancer. I took the trouble to check that Act and it is fascinating to see the difference between what is proposed for patent agents and what the Government did in 1985. For patent agents the only restriction is the inability to use the expression "patent agent". There is nothing to say that analogous descriptions such as "patent expert" could not be used. The Comptroller-General of Patents is given the power to refuse to deal with anyone who transgresses in any way.
It is important to look at the 1985 Act. There are 26 sections dealing with the regulation, training, licensing and so on of conveyancers. Patents are extremely complicated. I have had 10 years experience of conveyancing in Scotland and I know that patents are a far more complicated area than modern-day conveyancing. Yet there is to be a totally unregulated market. Individuals will be able to pass themselves off as experts and, without any prior condition, qualification, registration, licence or anything of the sort, they will be able to set themselves loose on the public.
Clause 269 (2) gives the Comptroller-General the power to refuse to deal with certain agents. It gives no redress or compensation for the victims of bad advice or inadequately drafted patents. Often, that will not become known until the damage is done. In Committee we made the point forcibly that there should be a requirement for professional indemnity insurance. The Minister rather glibly dismissed the idea out of hand, on the basis that if anyone wanted to use an unlicensed patent agent, they were entitled to do so. He did not say that it should be necessary to protect the public.
It should be borne in mind that there are other areas where it would be difficult for people to find out about bad advice and so on, until the damage has been done. For example, what about an inventor who is told by an unlicensed or unregistered patent agent that his invention is not patentable? He may accept that advice, because he has chosen to use that patent agent, but he has no redress because the Government do not seek to provide it. There are no provisions for the payment of compensation or the finding of negligence. That will not even come before the Comptroller-General because he will not be exercising supervision over what goes on in the offices.
There are serious matters of public concern, which, as I said, were forcibly and fully expressed in Committee. We seek to allay the fears and the general concern by new clause 15, which would require the Secretary of State to regulate the market. The Government have done that forcibly for conveyancers, and there is no reason why they should not do the same in this equally important area.

Mr. Butcher: The issues raised by the hon. Member for Aberdeen, South (Mr. Doran) were looked at in some detail in Committee. However, the arguments bear further examination, although the hon. Gentleman will be disappointed to know that I am no more persuaded of the strength of his arguments now than I was before.
We believe that these proposals are unwarranted and burdensome. The Director General of Fair Trading made it clear in his report published in 1986 that restrictions on those wishing to offer patent services have a detrimental

effect on costs to users of the system. He found in particular that under the present system many small firms and private inventors were being deterred from seeking advice. New clause 15 and other amendments consequential to it would ensure that they would continue to be deterred by the establishment of a new burdensome regulatory procedure.
We have said that there should continue to be a register and reserved titles that will signal which practitioners have undergone practical and theoretical training and hold a certain qualification. Such practitioners will no doubt continue to offer a high standard of service, but there should also be competition and choice in the provision of patent services.
We must recognise that those who require patent services are a relatively specialised class of consumer and must surely be credited with sufficient awareness to be able to chose the type of service that they need and can afford. A balance has to be struck between the seriousness of the risks to the consumer and the disadvantages that restrictions entail. Financial risk alone is not a decisive reason for the existence of restrictions. The patents profession is not alone in dealing with complex matters; anyone can offer an architect's services, although not call himself an architect. Anyone can offer legal advice—for example, staff of the citizens advice bureaux do so every day—without being solicitors. The activity and title of accountant are also unrestricted. In such cases, the consumer decides whether to employ a fully qualified practitioner or whether his needs can be met by someone else.
The new clause and its consequential amendments do not merely seek to restrict entry. They seek also to impose rules on practitioners, including the obligation to insure and to provide for a fund to indemnify against loss. That runs directly contrary to the need to create a more competitive environment by allowing a wider range of services and a reduction in costs to develop in response to consumer demand.
Restrictions still exist on the provision of conveyancing. The hon. Member for Aberdeen, South emphasised the need to protect the consumer of patent services from the unqualified, and drew comparisons with controls in that respect. As I have said, we recognise that there are risks involved in seeking advice from unqualified patent practitioners, but we must not lose sight of the fact that patent agents are employed by those whose business, to some extent, is that of inventor. Conveyancing services are used by millions of ordinary people who cannot be expected to have an appreciation of the procedures or risks involved in taking unskilled advice. It will be for the individual practitioner to decide what protection he requires against the possibility of giving poor advice. The individuals who are most likely to benefit from the reduction in costs and the wider availability of advice are those who currently receive no advice at all. It must be for them to choose a practitioner and to decide what value to put upon the protection that he is able to offer.

Mr. Lewis Stevens: Does my hon. Friend agree that many inventors will not necessarily have any great business expertise, but many have an excellent idea? They can easily be dissuaded by an unqualified person from recognising the need for a patent. I should have thought that it is necessary to differentiate much more


clearly between those who can act on behalf of ordinary people with an idea and those whose advice can be recognised as having professional status.

Mr. Butcher: I am grateful to my hon. Friend. As he will know, when we considered the issue in other contexts we usually came to the view that competition coming in from the bottom end of the profession normally has a beneficial effect. My hon. Friend talked about that class of potential users who currently may not wish to go straight to a full-blown patent agent. Many people do not get advice. We are saying that there can be a lower tier of people who do not have a formal and detailed qualification to offer advice to that group of people who most often do not seek the advice that we think they should have. We are convinced that, in this respect as in others, the consumer—in this case, the inventor—gets a wider choice and advice is more widely available to those who need it most, very often an individual inventor or a small firm.
It will come as no surprise to the hon. Member for Aberdeen, South that I am unable to accept amendment No. 20 either. The restrictions in subsection (1) of the proposed new clause are so wide that it would be virtually impossible for anybody who is not a registered patent agent to advertise the fact that patent services were available. Thus the clause would defeat our overall objective of lifting restrictions on who may offer patent services. Similar arguments apply in respect of subsections (2) and (3), which relate to partnerships and companies.
I now refer briefly to subsection (4). I cannot really see why this provision should exist. It deals with misuse of the title patent office or related words. The subject matter is already covered by section 112 of the Patents Act 1977, which is not affected by anything in this Bill. Admittedly, section 112 is framed in different and slightly narrower terms, but we have never received any representations that it is deficient and ought to be extended in scope.
For those reasons I must resist amendment Nos. 18, 20, 228 and 229 and new clause 15.
8.15 pm
Briefly, amendments Nos. 108 and 109 relate back to amendments made in Committee. They were intended to ensure that the use of words related to the protected titles patent agent and patent attorney would also be caught by the clause. We had in mind expressions such as "patent agency". Since then, we have received representations that the amended clause is still too restricted in scope. For example, it has been put to us that, even though the letters "RPA" after a person's name are the normal abbreviation for registered patent agent, as it now stands the clause would not prohibit the use of those letters by an unregistered person.
Although we do not accept that a court would necessarily take that view, it does no harm to put the matter beyond doubt, so we are making these amendments so that the clause will refer to expressions rather than just words.

Mr. Blair: We can briefly deal with this new clause, as we had a full debate in Committee. I endorse what my hon. Friend the Member for Aberdeen, South (Mr. Doran) said. We are not against ending the monopoly for patent agents. We are simply concerned to ensure that those who have ideas and may hold themselves out to people as patent experts and patent consultants have some minimum qualifications. The Minister drew an analogy between the

staff of citizens advice bureaux and patent experts giving advice. It seemed to be entirely beside the point. Staff of citizens advice bureaux make it absolutely clear that they are giving an informal service. They do not hold themselves out as experts.
Yet, under the provisions of the Bill, if the Opposition's new clause is not accepted, someone can say that he or she is a patent expert or patent consultant, but have no qualifications, no training whatsoever, no indemnity insurance, and absolutely no regulations whatsoever covering them in the conduct of their business. That seems to be wrong. A much better analogy is licensed conveyances. There should be an open, competitive market, but it should be subject to basic rules of protection for the consumer. Our new clause 15 gives such rules and protection, and the Government do not. I ask my hon. Friends to support our new clause in the Division Lobby tonight.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 15

AUTHORISED PERSONS FOR PURPOSE OF ACTING AS PATENT AGENTS ETC.

'(1) A person holding an authorisation granted by the Secretary of State under the provisions of this section is an authorised person for the purpose of carrying on the business of acting as agent for others for the purpose of—
(a) applying for or obtaining patents, in the United Kingdom or elsewhere, or
(b) conducting proceedings before the comptroller relating to applications for, or otherwise in connection with, patents.

(2) An application for authorisation by the Secretary of State may be made by an individual, partnership or body corporate.

(3) The Secretary of State may make rules:—
(a) regulating the manner in which any such application shall be made and any authorisation granted, and providing for the withdrawal, termination or suspension of any such authorisation, and
(b) regulating the competence, professional practice, conduct and discipline of authorised persons.

(4) Without prejudice to the generality of the preceding subsection, rules under this section shall:—
(a) prescribe minimum standards of general education that must have been obtained by persons who seek to hold an authorisation,
(b) prescribe any education or training to be undergone by persons who seek to hold an authorisation,
(c) require authorised persons to take out and maintain insurance with authorised insurers, and prescribe conditions which an insurance policy must satisfy, and
(d) provide for a fund to indemnify members of the public against any losses incurred as a result of the advice or actions of authorised persons.

(5) In subsection (4), "authorised insurers" means a person permitted under the Insurance Companies Act 1982 to carry on:—
(a) insurance business of class 13 in Schedule 2 to that Act; or
(b) insurance business of classes 1,2, 14, 15, 16 and 17 in that Schedule.

(6) Rules under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.—[Mr. Blair.]

Brought up, and read the First time.

Motion made and Question put, That the clause be read a Second time:—

The House divided: Ayes 130, Noes 223.

Division No. 442]
[8.18 pm


AYES


Allen, Graham
Illsley, Eric


Anderson, Donald
Ingram, Adam


Archer, Rt Hon Peter
Janner, Greville


Ashdown, Paddy
Kirkwood, Archy


Ashton, Joe
Lamond, James


Barnes, Harry (Derbyshire NE)
Leighton, Ron


Barron, Kevin
Litherland, Robert


Beckett, Margaret
Lloyd, Tony (Stretford)


Bennett, A. F. (D'nt'n &amp; R'dish)
Loyden, Eddie


Bermingham, Gerald
McAllion, John


Bidwell, Sydney
McAvoy, Thomas


Blair, Tony
McKelvey, William


Boyes, Roland
McLeish, Henry


Bradley, Keith
McWilliam, John


Bray, Dr Jeremy
Madden, Max


Brown, Nicholas (Newcastle E)
Mahon, Mrs Alice


Bruce, Malcolm (Gordon)
Marek, Dr John


Buchan, Norman
Martin, Michael J. (Springburn)


Buckley, George J.
Martlew, Eric


Caborn, Richard
Meacher, Michael


Campbell, Ron (Blyth Valley)
Meale, Alan


Campbell-Savours, D. N.
Michael, Alun


Clark, Dr David (S Shields)
Michie, Bill (Sheffield Heeley)


Clarke, Tom (Monklands W)
Millan, Rt Hon Bruce


Clay, Bob
Mitchell, Austin (G't Grimsby)


Clwyd, Mrs Ann
Molyneaux, Rt Hon James


Cohen, Harry
Morgan, Rhodri


Corbett, Robin
Morley, Elliott


Cousins, Jim
Morris, Rt Hon A. (W'shawe)


Crowther, Stan
Mowlam, Marjorie


Cryer, Bob
Mullin, Chris


Cummings, John
Murphy, Paul


Cunliffe, Lawrence
O'Brien, William


Darling, Alistair
Patchett, Terry


Davies, Ron (Caerphilly)
Pike, Peter L.


Davis, Terry (B'ham Hodge H'l)
Powell, Ray (Ogmore)


Dewar, Donald
Prescott, John


Dixon, Don
Quin, Ms Joyce


Dobson, Frank
Rees, Rt Hon Merlyn


Doran, Frank
Roberts, Allan (Bootle)


Dunwoody, Hon Mrs Gwyneth
Ross, Ernie (Dundee W)


Eadie, Alexander
Rowlands, Ted


Eastham, Ken
Sheerman, Barry


Evans, John (St Helens N)
Short, Clare


Ewing, Harry (Falkirk E)
Skinner, Dennis


Ewing, Mrs Margaret (Moray)
Smith, Andrew (Oxford E)


Fields, Terry (L'pool B G'n)
Smith, C. (Isl'ton &amp; F'bury)


Fisher, Mark
Smyth, Rev Martin (Belfast S)


Flynn, Paul
Spearing, Nigel


Foot, Rt Hon Michael
Taylor, Matthew (Truro)


Foster, Derek
Turner, Dennis


Fraser, John
Vaz, Keith


Galloway, George
Wall, Pat


Garrett, Ted (Wallsend)
Wallace, James


George, Bruce
Wardell, Gareth (Gower)


Godman, Dr Norman A.
Welsh, Andrew (Angus E)


Golding, Mrs Llin
Welsh, Michael (Doncaster N)


Griffiths, Win (Bridgend)
Wigley, Dafydd


Grocott, Bruce
Williams, Rt Hon Alan


Haynes, Frank
Williams, Alan W. (Carm'then)


Hinchliffe, David
Wilson, Brian


Hogg, N. (C'nauld &amp; Kilsyth)
Winnick, David


Hoyle, Doug
Worthington, Tony


Hughes, Robert (Aberdeen N)



Hughes, Roy (Newport E)
Tellers for the Ayes:


Hughes, Sean (Knowsley S)
Mr. Allen McKay and Mr. Robert N. Wareing.


Hughes, Simon (Southwark)





NOES


Alexander, Richard
Atkinson, David


Alison, Rt Hon Michael
Baker, Nicholas (Dorset N)


Amess, David
Baldry, Tony


Arbuthnot, James
Banks, Robert (Harrogate)


Arnold, Jacques (Gravesham)
Batiste, Spencer


Arnold, Tom (Hazel Grove)
Beaumont-Dark, Anthony


Ashby, David
Bellingham, Henry


Aspinwall, Jack
Bennett, Nicholas (Pembroke)


Atkins, Robert
Benyon, W.





Bevan, David Gilroy
Heathcoat-Amory, David


Biggs-Davison, Sir John
Heddle, John


Blackburn, Dr John G.
Heseltine, Rt Hon Michael


Bonsor, Sir Nicholas
Hicks, Robert (Cornwall SE)


Boswell, Tim
Higgins, Rt Hon Terence L.


Bottomley, Peter
Hill, James


Bowden, A (Brighton K'pto'n)
Hind, Kenneth


Bowden, Gerald (Dulwich)
Howard, Michael


Bowis, John
Howarth, Alan (Strat'd-on-A)


Braine, Rt Hon Sir Bernard
Howarth, G. (Cannock &amp; B'wd)


Brandon-Bravo, Martin
Howe, Rt Hon Sir Geoffrey


Brazier, Julian
Hughes, Robert G. (Harrow W)


Bright, Graham
Hunt, David (Wirral W)


Brown, Michael (Brigg &amp; Cl't's)
Hunt, John (Ravensbourne)


Browne, John (Winchester)
Hunter, Andrew


Bruce, Ian (Dorset South)
Irvine, Michael


Buck, Sir Antony
Irving, Charles


Budgen, Nicholas
Jack, Michael


Burt, Alistair
Janman, Tim


Butcher, John
Jessel, Toby


Butler, Chris
Johnson Smith, Sir Geoffrey


Butterfill, John
Jones, Gwilym (Cardiff N)


Carlisle, John, (Luton N)
Jones, Robert B (Herts W)


Carrington, Matthew
Kellett-Bowman, Dame Elaine


Carttiss, Michael
King, Roger (B'ham N'thfield)


Channon, Rt Hon Paul
Knapman, Roger


Chapman, Sydney
Knight, Greg (Derby North)


Chope, Christopher
Knight, Dame Jill (Edgbaston)


Churchill, Mr
Knowles, Michael


Clark, Hon Alan (Plym'th S'n)
Knox, David


Coombs, Anthony (Wyre F'rest)
Lang, Ian


Coombs, Simon (Swindon)
Latham, Michael


Cope, Rt Hon John
Lawrence, Ivan


Couchman, James
Lee, John (Pendle)


Cran, James
Lennox-Boyd, Hon Mark


Currie, Mrs Edwina
Lester, Jim (Broxtowe)


Curry, David
Lightbown, David


Day, Stephen
Lilley, Peter


Devlin, Tim
Lloyd, Peter (Fareham)


Dickens, Geoffrey
Lord, Michael


Douglas-Hamilton, Lord James
Lyell, Sir Nicholas


Dover, Den
McCrindle, Robert


Durant, Tony
Macfarlane, Sir Neil


Evans, David (Welwyn Hatf'd)
MacKay, Andrew (E Berkshire)


Fallon, Michael
McLoughlin, Patrick


Favell, Tony
McNair-Wilson, Sir Michael


Fenner, Dame Peggy
McNair-Wilson, P. (New Forest)


Fishburn, Dudley
Major, Rt Hon John


Fookes, Miss Janet
Malins, Humfrey


Forman, Nigel
Mans, Keith


Forth, Eric
Maples, John


Fox, Sir Marcus
Marshall, John (Hendon S)


Franks, Cecil
Marshall, Michael (Arundel)


Freeman, Roger
Martin, David (Portsmouth S)


French, Douglas
Maude, Hon Francis


Fry, Peter
Maxwell-Hyslop, Robin


Gale, Roger
Meyer, Sir Anthony


Gardiner, George
Miller, Sir Hal


Garel-Jones, Tristan
Mills, Iain


Gill, Christopher
Miscampbell, Norman


Goodlad, Alastair
Mitchell, Andrew (Gedling)


Goodson-Wickes, Dr Charles
Moate, Roger


Gorman, Mrs Teresa
Monro, Sir Hector


Gow, Ian
Montgomery, Sir Fergus


Gower, Sir Raymond
Morris, M (N'hampton S)


Greenway, John (Ryedale)
Morrison, Sir Charles


Gregory, Conal
Morrison, Rt Hon P (Chester)


Griffiths, Sir Eldon (Bury St E')
Moss, Malcolm


Griffiths, Peter (Portsmouth N)
Moynihan, Hon Colin


Ground, Patrick
Mudd, David


Hamilton, Neil (Tatton)
Neale, Gerrard


Hanley, Jeremy
Neubert, Michael


Hannam, John
Newton, Rt Hon Tony


Hargreaves, A. (B'ham H'll Gr')
Nicholls, Patrick


Hargreaves, Ken (Hyndburn)
Nicholson, David (Taunton)


Harris, David
Nicholson, Emma (Devon West)


Haselhurst, Alan
Onslow, Rt Hon Cranley


Hawkins, Christopher
Page, Richard


Hayes, Jerry
Paice, James


Hayward, Robert
Patnick, Irvine






Peacock, Mrs Elizabeth
Stern, Michael


Porter, Barry (Wirral S)
Stewart, Andy (Sherwood)


Porter, David (Waveney)
Sumberg, David


Portillo, Michael
Summerson, Hugo


Powell, William (Corby)
Taylor, John M (Solihull)


Price, Sir David
Thompson, D. (Calder Valley)


Rathbone, Tim
Thorne, Neil


Redwood, John
Thurnham, Peter


Riddick, Graham
Townend, John (Bridlington)


Ridley, Rt Hon Nicholas
Tredinnick, David


Ridsdale, Sir Julian
Waddington, Rt Hon David


Roberts, Wyn (Conwy)
Ward, John


Rost, Peter
Wardle, Charles (Bexhill)


Ryder, Richard
Watts, John


Sackville, Hon Tom
Wheeler, John


Shaw, David (Dover)
Widdecombe, Ann


Shaw, Sir Giles (Pudsey)
Winterton, Mrs Ann


Shaw, Sir Michael (Scarb')
Winterton, Nicholas


Shelton, William (Streatham)
Wood, Timothy


Shephard, Mrs G. (Norfolk SW)
Woodcock, Mike


Shepherd, Colin (Hereford)



Sims, Roger
Tellers for the Noes:


Skeet, Sir Trevor
Mr. Stephen Dorrell and Mr. David Maclean.


Speller, Tony



Spicer, Michael (S Worcs)

Question accordingly negatived.

New clausc 20

RECORDINGS OF FOLKSONGS

'.—(1) A sound recording of a performance of a song may be made, for the purpose of including it in an archive maintained by a designated body, without infringing any copyright in the words as a literary work or in the accompanying musical work, provided the conditions in subsection (2) below are met.

(2) The conditions are that—
(a) the words are unpublished and of unknown authorship at the time the recording is made,
(b) the marking of the recording does not infringe any other copyright, and
(c) its making is not prohibited by any performer.

(3) Copies of a sound recording made in reliance on subsection (1) and included in an archive maintained by a designated body may, if the prescribed conditions are met, be made and supplied by the archivist without infringing copyright in the recording or the works included in it.

(4) The prescribed conditions shall include the following—
(a) that copies are only supplied to persons satisfying the archivist that they require them for purposes of research or private study and will not use them for any other purpose, and
(b) that no person is furnished with more than one copy of the same recording.

(5) In this section—
(a) "designated" means designated for the purposes of this section by order of the Secretary of State, who shall not designate a body unless satisfied that it is not established or conducted for profit,
(b) "prescribed" means prescribed for the purposes of this section by order of the Secretary of State, and
(c) references to the archivist include a person acting on his behalf.

(6) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.—[Mr. Butcher.]

Brought up, and read the First time.

Mr. Norman Buchan: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker: With this it will be convenient to take the following: New clause 21—Parody in folk material—

The publishing of a song in print or a sound recording does not infringe any copyright, where the words of the song are totally or substantially different from the original, the authorship is unknown, and the publishing is in connection with the study or dissemination of contemporary folk-lore.'.

Amendment No. 252, in page 152, line 1, at end insert—

'Recordings of folksongs

6A.—(1) A recording of a performance of a song may be made for the purpose of including it in an archive maintained by a designated body without infringing any of the rights conferred by Part II, provided the conditions in sub-paragraph (2) below are met.

(2) The conditions are that—
(a) the words are unpublished and of unknown authorship at the time the recording is made.
(b) the making of the recording does not infringe any copyright, and
(c) its making is not prohibited by any performer.

(3) Copies of a recording made in reliance on sub-paragraph (1) and included in an archive maintained by a designated body may, if the prescribed conditions are met, be made and supplied by the archivist without infringing any of the rights conferred by Part II.

(4) In this paragraph—
"designated body" means a body designated for the purposes of section (Recordings of folksongs), and
"the prescribed conditions" means the conditions prescribed for the purposes of subsection (3) of that section;
and other expressions used in this paragraph have the same meaning as in that section.'.

Mr. Buchan: I owe a debt of gratitude to the Department of Trade and Industry. I apologise for not being involved in the Bill at an earlier stage—to some extent I should have been. The response that I received from the Department of Trade and Industry did not go as far as I should have liked, but if the new clause is accepted it will create a modus vivendi for those concerned with copyright.
I support the case for the individual artist's remuneration and moral rights, whether he be a writer or a musician but we are dealing with material that is or should be in the public domain and which, if it is unamended, may create difficulties if the copyright laws are applied too strictly. I am seeking to create not a loophole but a modus vivendi for serious researchers, serious collectors and, where possible, for the dissemination of information and material to interested and involved people.
It might be useful to describe the material that will be affected. All folk material is derivative and imitative. Bronson printed 200 tunes for "Barbara Allen". They are all recognisable as Barbara Allen tunes but different variants are equally recognisable as separate variants. No one copyrighted "Barbara Allen" material: it was mentioned as long ago as the 1660s when Pepys heard what he called the "little Scotch ballad of Barbara Allen".
The problem facing the contemporary collector of such material, or someone who wishes to write about it. as I have, is that since the time of Pepys and all the early collectors—Bishop Percy and others—copyright has been developed. If a man hears a tune now, learns it and writes other words to it, as I and others have done, he faces a problem if the tune is copyrighted. Sometimes the material is such that the dissemination of it, if it were disseminated let alone collected, would not cause the composer much fear. A sea-song from the last war goes as follows:
My job is to clean a naval latrine, I'm the man with the plan for the pan that everyone uses.
Hon. Members might guess that is the beginning of the tune, Beguine the Begin. I do not think that Cole Porter or


whoever wrote it would be worried that the tune has been published in a book of seamen's songs, some of which are serious and some funny.
Doctor Ian Russell of the Folk Song Journal, in a paper called "Parody and Performance", found that he would be charged quite a lot of money for a publication that would not raise much. He intended to print the tune with a parody of "Show Me the Way to Go Home" but, because the tune was copyright, he was to be charged.
How do we cope with the problem of making parodies of tunes that are copyrighted? We argue that parodies are a part of the public domain and of our contemporary heritage. Some of them are funny and some are bawdy, but nevertheless they are a means of repeating what people said. I was reminded of Hamlet talking to the players, when he said:
let them be well used; for they are the abstracts and brief chronicles of the time: after your death you were better have had a bad epitaph than their ill report while you live.
I remember an incident not long ago, which hon. Members may also remember, in which one of the verses went:
For there was a Tory and a Ryebuck Red, Fighting out the Cold War in Christine's bed.
Some hon. Members may recall the incident that it described.
Parodies are used to comment because it is important to know what people are commenting about. Hon. Members will be aware of the well-known children's song:
Now the war is over, Hitler he is dead, He went to Heaven with a pain in his head. The Lord said, 'No, you'll have to go below— There's only room for Elvis and his wee banjo.'
Another parody says:
Now the war is over, Vaseline's dead.
I puzzled for some time as to what was meant by vaseline. Of course, Hitler is remembered, but Mussolini is completely forgotten.
We had to seek means by which material could be disseminated because of the greater consciousness of copyright as a result of this Bill, and the greater importance of the moral rights of the person who does not want his material to be used, and even has the ability to intervene to prevent matters being commented on by its use in another way.
I suspect that new clause 21 will be opposed. I talked to the copyright bodies and said that as the clause was imperfect I expected that it would be opposed. It sets out what we should like to establish in one form or another so that we can publish a song, whether it be a children's song or a seaman's; where the words of a song are substantially or totally different from the original, when the authorship is unknown and the publication is in connection with the study or dissemination or contemporary folklore.
I do not think that new clause 21 will be accepted. I recognise that the inclusion of the word "dissemination" will worry the copyright bodies. I hope that they will recognise that when a work such as "Grey Funnel Lines" is published it should become part of the public understanding and within public view.
I am reminded of an older song, which says:
Hark the herald angels sing, Mrs. Simpson's pinched our King.
I move the new clauses and amendment so that such material can be preserved, remembered and pass into our history.

Mr. Andrew F. Bennett: I join my hon. Friend the Member for Paisley, South (Mr. Buchan) in supporting the new clauses and the amendment. I apologise to the House for coming rather late to the debate. I was made aware by my wife, who is a member of the Folklore Society, of the concerns about the recording and copyrighting of material.
I am concerned not only with the folksong and the parody, but with the song, the dance, the folk tale, the traditional play, the urban legend and matters such as herbal remedies, children's rhymes, Xerox jokes that are printed on many copying machines and even graffiti. That is all traditional material, but it belongs to people rather than the individual. The first concern is how far one individual can secure copyright for material simply because he records it.
Traditional material feeds on what is clearly copyright material. Songs are parodied. A most obvious example is the way in which children use jingles from television advertisements and put new words to them. I suspect that none of the television companies or advertisers would mind in the slightest, although sometimes the jingle becomes fairly derogatory to their product.
The worry is that, if somebody parodies or uses material in some new form, he may become liable to a charge under copyright law. Because material is in the public domain, it is difficult for anyone to demand a fee for its use. No one will accuse a group of children singing a song in a street of taking the tune for their song from a television jingle, and it is unlikely that anyone will raid a public house where folk singers are performing a song for which they have taken the turn from recently published copyright material and put a parody to it. It is not worth anyone pursuing them at that point, even if the folk singers are being paid a small sum or are taking a collection.
The problem arises when someone records the material in some form. An example is to be found at party conferences—for Labour it is the Red Review, but I am not sure what the Tory review is called. Those reviews almost always use popular songs and send up various political figures to their tunes. I do not suppose that anyone would chase for the copyright of a tune at that point, but an excerpt may then be shown on television or recorded in some form. It is at that point that people may start to pursue a royalty on the material.
The importance of the new clause is that it makes it absolutely clear that if people record material either in written or in taped form, they should not be liable; they are the people who would be pursued for a royalty.
There is a slight question mark in my mind about whether, if there is an academic study, and material is recorded, its nature is changed. That is my reservation.
I look forward to hearing what the Government have to say. I hope that they will assure use that the Bill will not make it easier for an individual to steal a copyright on material that is in general circulation and that, when people take material in the general public domain, adapt and alter it, and do not normally make any money from it, there will not be restrictions and difficulties for those who wish to record the material either in taped or written form.

Mr. Butcher: I am pleased to say that the Government are able to go some of the way towards meeting the worries expressed by the hon. Members for Paisley, South (Mr. Buchan) and for Denton and Reddish (Mr. Bennett).
It appears to be de rigeur to think of a piece of material that may be relevant here. I can only commend an alternative version of the Rubáiyát of Omar Khayyám to this gathering. I especially commend it to parliamentary draftsmen who once every two decades come forward with a Copyright, Designs and Patents Bill. It goes something like this:
The moving finger writes and having writ, moves on and writes another bit.
The difficulty is that in the House we appear to be writing more and more bits with greater and greater frequency, but in this case I believe that our boulder in the avalanche of legislation which some say afflicts the House is important.
One can argue that, infrequent as these Bills are, we should get them right. It is with that objective in mind that I hope that Opposition Members will confirm that this has been as close as one can get to an exercise in open government by way of open doors, open to ideas, close relationships and advice from officials in the Department of Trade and Industry and hon. Members of all parties. This trio of new clauses and amendments comes into that category, and I believe that, although I can accept two, and have to resist one, they benefit from a free and open exchange of views.
In this country we have always celebrated events of both national and personal importance in song. From the balladeer of the medieval court to the songs heard today at a rugby match, folk music provides a lively guide to our social development. However, many of our modern folk songs consist of new words being fitted to existing copyright music and that can cause problems for those who want to research and collect folk music.
I do not think that these problems are as severe as the hon. Member suggested. The Bill already allows fair dealing with musical works for the purposes of research, private study, criticism or review. However, we accept that there is a difficulty in relation to the making of sound recordings of performances of the folk versions of the copyright music.
8.45 pm
New clause 20 provides a way round this difficulty. It is a new exception to copyright which, together with amendment No. 252, its corresponding exception in schedule 2, I am happy to accept. The clause will allow recordings of performances of songs to be made for the purpose of inclusion in an archive maintained by a designated body without infringing the copyright in the words or music. This is, however, subject to several conditions which will safeguard the interests of composers, lyricists and performers. The practical effect is that only the copyright in the music is overriden and for a very limited purpose.
Subsequently, anyone requiring a copy of the recording for the purpose of research and private study will be able to obtain it from the archivist. I believe this is a reasonable exception to copyright that will result in an archive providing a useful insight into our social history.
Unfortunately, I cannot be so accommodating about new clause 21.

Mr. Wigley: There is obviously some inspiration behind the wording of new clause 20. Am I right to say that, although the title is "Recordings of folksongs" the

definition of folk songs is broad? The new clause relates not only to folk songs, but to anything that falls within the definitions that we have here.
Secondly, will the Minister confirm that the designated bodies will be wide-ranging enough to take in the bodies that exist in Scotland, Wales and Ireland, as well as in England, that involve themselves in those activities?

Mr. Butcher: I am 90 per cent. sure at this stage that the answer to the hon. Gentleman's second question is yes. I will do my best to discharge an obligation to reply to the hon. Gentleman's first point before I resume my seat. In the interim, I will continue with my observations on new clause 21.

Mr. Andrew F. Bennett: I understand that suggestions have been made to the Minister about who the designated bodies will be. My only slight reservation is that several of the designated bodies have put together collections which were made by individuals. Those designated bodies would not have such good collections but for the work of individuals in the past. The slight reservation is that there are private individuals who have put together a collection which, in the future, will become a valuable archive. It appears that they are excluded from new clause 20, which is being accepted. Has the Minister any observations on that?

Mr. Butcher: Again, I will attempt to give the hon. Gentleman satisfaction before we complete this debate. There are several examples of individual collections being incorporated in national archives. That is a trend which we all want to be consolidated and enhanced. I hope that my reply supports what is the universal objective of the House.
New clause 21 goes far beyond the archival exception that I have just explained. It could seriously affect the legitimate interests of copyright owners. It would allow the publication of books and records of any song, providing that the words were different from the original. There are safeguards, but I do not think that they are adequate. The clause says that the author of the words must be unknown and that the publishing has to be in connection with the study or dissemination of contemporary folklore. That would, however, open the way for the commercial exploitation of music without any control by, or payment to, the owner of copyright in the music. A record company could, for example, claim that it was merely disseminating folklore if it were to become aware of an anonymous set of words having been put to some already popular music, and were to issue a professionally produced sound recording of that version. It would clearly be quite wrong to deny the writer of the original music any say in that.
While I realise that new clause 21 is motivated by a genuine concern to allow the research and dissemination of folklore, it would take away the basic rights of the copyright owner to an unacceptable degree and would be incompatible with our obligations under the Berne convention.
New clause 20 and the existing provisions ensure that those genuinely involved in folk music research can collect and maintain archives of such music and can report the results of their research without infringing copyright. To take the exception any further would undermine the legitimate interests of composers and, at this late stage, I regret that I must ask hon. Members not to press new clause 21.
As regards the definition of "folk song", which was the issue raised by the hon. Member for Caernarfon (Mr. Wigley), there is no definition, because it covers any unpublished anonymous words set to copyright music whether or not it would be called folk song. Therefore there is no need to refer to "folk song" in the clause, because it would not add anything to the identification of what is covered. However, it is useful to refer to folk song as a shorthand in the title of the clause. That title will have no legal effect. It is merely a signpost.
I hope that hon. Members are satisfied, but I should point out to the whole House that there is a tradition which was established in Committee that hon. Gentlemen who wish to have a question answered immediately are obliged to stand up and make a not-too-lengthy intervention while the answer is prepared.

Mr. Buchan: In that case, I shall try to oblige the Minister and to give the House a little help. First, I congratulate whoever suddenly produced the definition of folk song as not being amenable to definition. That is absolutely right. My shelves are full of definitions, none of which can totally agree because they all become restrictive. It is rather like the story of Attlee replying to an organisation set up in, of all unlikely folk bodies, the Labour party—which if hon. Members recall, should not set up other organisations. Nobody could define what was meant by an organisation, so he said, "Well, we cannot define an elephant but we can recognise it when it comes through the door." In reply Zilliacus then told the famous story of the plague of rabbits in the Ukraine. All the rabbits poured over the border into Poland and the Polish rabbits said, "What are you running away from?" The other rabbits said, "They have declared a purge on all camels." The Polish rabbits said, "But you are rabbits". The other rabbits replied "Have you tried proving that to the OGPU?" That shows that what is available is always amenable to one's own definition.
I should like to make two points. First, the Minister has been slightly over-restrictive, which was unfortunate. We have no intention of opening any loopholes, and I do not believe that the new clause would do that. I can understand that, as with the definition of folk song, this definition might seem to open up a loophole, but that is most unlikely. Even in dissemination, if the song had been printed in a particular book about the man who cleaned the latrines, it would not have given Cole Porter a sleepless night. There can be a modus vivendi and the best thing that we can do is to have a chat with the copyright bodies—I intend to do that—to see what will happen.
Secondly, nothing more pleases some people who write songs than to write a song and then find, as I found recently, that it is being sung as traditional. Although that deprived me of my copyright fees, I was pleased that it passed as traditional—once in a learned book and then on a disc, so in the end I was quite pleased that it happened.
The classic case is that of a song of the last war, "Those D-day dodgers"—we now know who wrote it—which then became in every other way a folk song. I was in the 8th Army and we all knew the song long before I met the man who wrote it, Hamish Anderson. It contained some beautiful lines about Nancy Astor:

Dear Lady Astor …
England's sweetheart and her pride,
We think your mouth's too bloody wide.
That was from the D-Day Dodgers way out in Italy.
I should now like to make a serious point because I think that the Minister will have collected his thoughts by now. I want to talk about private collectors and their collections in relation to organisations. I hope that we can put our heads together about the organisations, including obviously, the School of Scottish Studies, Cecil Sharp house and the institute in Sheffield. In addition to those bodies, many academic bodies, including most polytechnics and universities, have cultural curricula and institutions of some kind. I hope that all those fall within the scope of the provisions.
The individual collector and the individual singer is almost always involved. For a long period I could hardly exist because of young people knocking at my door, looking for words and tunes, when the folk song revival was taking place. Similarly, almost all people connected with this would want to involve themselves with those bodies. All that we need to do is to help those wishing to sing or learn such material to associate with one of the bodies.
The final point I should like to make—unless the Minister is now ready to reply before I come back to withdraw my amendment—

Mr. Butcher: The position on private collections is that we cannot legislate retrospectively to make those collections legal if they are not legal at the time the recordings were made. However, in many cases, copyright owners will give permission for their music to be dealt with in that way. For the future, private individuals will be able to make recordings without seeking permission in order to put the recordings in an archive. I hope that that answer is helpful to the House.
I heard what the hon. Gentleman said about future negotiations and about seeking clarification. However, I hope that for the time being the House will be satisfied if I repeat that I am perfectly happy to endorse and support new clause 20 and amendment No. 252. Unfortunately, for the reasons I have given, I cannot support new clause 21. I believe that the House has found a more or less agreeable modus vivendi.

Mr. Buchan: I will, of course, withdraw new clause 21 partly because I would lose it in any case, but partly because it is imperfect. I hope that, when thanking me for withdrawing it, the Minister will say that he would find it useful if we discussed it with the copyright bodies, and that he might go so far as to say that he hopes that the copyright bodies will have equally open minds when we discuss the kind of modus vivendi. It would help me if the Minister would say so.

Mr. Butcher: Yes, that would be perfectly feasible. I hope that I have recorded the thanks of the House and my Department for the hon. Gentleman's work. A major constituency has an interest in these issues and if my earlier remarks were not interpreted as an appropriate acknowledgment of the hon. Gentleman's work I apologise to him because it is most certainly acknowledged.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Clause 6

BROADCASTS

Amendments made: No. 33, in page 3, line 31, leave out 'generally'.

No. 34, in page 3, line 32, at end insert
'or the person providing the contents of the transmission'.—[Mr. Butter.]

Clause 7

CABLE PROGRAMMES

9 pm

Miss Emma Nicholson: I beg to move amendment No. 321, in page 4, leave out lines 19 to 26.
The purpose of my amendment is to ask the Government why they do not intend to provide adequate protection for the part of computer software that is known as interactive or expert or knowledge-based systems. In Committee the Minister said that these were excluded from the protection provided by the clause because such communications were private. I challenge that thinking on three counts and ask the Minister how else he intends to protect this valuable and fast-growing area of computer software work.
First I shall deal with the question of privacy. If it is accepted that such communications are private—and I do not accept that premise—why should privacy and protection be seen as incompatible? It could be said that correspondence on paper between two people is private, but such letters are protected. The author of a letter holds the copyright and the recipient cannot publish without the author's consent. Where a computer system encodes, transmits and displays a letter, why is that letter excluded from copyright protection when one manually scripted or typewritten on to paper, transported by the Post Office and opened on arrival at its destination has copyright protection?
Electronic mail cannot be considered to be private because one may walk into any office and see the recipient's mail or messages on screen for all to see. We do not wish to see the exclusion of expert systems. What is an expert system and why does it need protection under this law? An expert system is one in which the system, or rather the database making up the system, is self-modifying in response to external interrogation and data input. This adaptive feature explains another system name—knowledge-based—although of course it is not the system that is knowledgeable but the team of software designers and programmers that has created it.
What are the practical applications of expert systems and how will those applications be threatened by exclusion from the clause? An easy example is the airline reservation system. Without my amendments, clause 7 would ensure that computer hackers—the catchphrase for unwanted electronic breaking and entering—are not prosecutable under copyright law. If the hacker were a bucket shop operator he could obtain valuable information on the availability of airline seats to be used commercially without investment in the reservation system.
A medical diagnostic database is available to doctors on-line. That means it is open all the time to communication. It is altered by the data put into the network and those data affect the response to the next

interrogation. Such a network is at present excluded by clause 7(2)(a) from being a cabled programme service and thus excludes the information being conveyed on the network from the protection given to information conveyed on a licensed cable programme service. Why should it be protected through copyright? The European Green Paper on copyright and the World Intellectual Property Organisation, which is known by the comfort-able name of WIPO, although I am not sure whether it means wipe it on or wipe it off, suggest that copynght is the most suitable law to protect against copying for computer programs. I suggest that as this is recognised by nearly all our trading partners, and as our industry has to operate in the real world, this is the way forward.
I cannot resist commenting on a powerful article in last Thursday's Financial Times. It suggested that a special legal framework should be created for computer software. However, the European Green Paper published on 1 June says that author's rights and neighbouring rights are the primary means of protecting computer programs, both at the level of Community member states and at international level, and that copyright is the best way of ensuring adequate protection programs against unauthorised reproduction.
In 1983 the World Intellectual Property Organisation said at a discussion meeting that the special treaty giving sui generis protection, which the organisation had identified in 1979 as the way forward, should no longer be pursued. It said that instead, WIPO and UNESCO, the two bodies responsible for the main international copyright conventions, should study further software copyright protection. The result was that in 1985 its committee of Government experts showed that, by that time, copyright protection for computer software existed in the most industrialised countries and in nearly all the European Community member states. We have now advanced to the possible European Community draft convention which will be at least partially, if not wholly, based on the Bill.
Perhaps it is because of all these things that through the amendment I ask the Minister to explain the exclusion of expert systems and reassure the computer software industry that the totality of its work is within copyright protection through the Bill.

Mr. Butcher: I am grateful to my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) for providing the opportunity for me to make a clarifying statement. I understand that the amendment is intended to ensure that interactive cable services are not excluded from copyright protection. We have put considerable effort into devising a definition of cable programme service in the Bill that will cover the elements of an interactive service, in which sounds, images or other information are conveyed to the user without any modification by him, but which will exclude the elements that are genuinely interactive, in the sense that input from the user modifies what is contained in or sent through the system.
The reason for that approach is that, while we obviously want the definition to cover all the elements of a database, for example, that are capable of purely passive reception—even though the system may be capable of being used interactively—it would not be right to bring within copyright control those elements that are essentially private communications between a single user of the service and the provider of it.
Thus, with teleshopping through Prestel, we want to cover the display of catalogue pages, but not the placing of orders. With a medical diagnostic service, we want to cover the sending of information to the user, but not the act of inputting data by the user. I am confident that the definition that we now have in the Bill, which we dealt with at some length in Committee on 12 May, provides the best answer that we can hope for at this stage.
My hon. Friend is admirably persistent in these matters, so may I say that if I am wrong and the definition, when tested in the real world, turns out to be deficient, we have the possibility of putting matters right through an order under subsection (3). However, to remove subsection (2)(a) from the Bill altogether would bring within the controls of copyright a variety of private communications that should remain free of them. I must therefore ask my hon. Friend to withdraw the amendment in the knowledge that she will at least have an insurance policy.

Miss Emma Nicholson: With that assurance from the Minister, I beg to ask leave to withdraw the amendment.

Amendment, by leave withdrawn.

Amendments made: No. 35, in page 4, line 23, leave out 'material' and insert 'information".

No 36, in page 4, line 32, leave out from 'for' to 'and' in line 33 and insert
'purposes internal to the running of the business and not by way of rendering a service or providing amenities for others,'.—[Mr. Butcher.]

Mr. Page: I beg to move amendment No 265, in page 5, line 4 leave out
'premises run as a business' and insert 'any premises'.
I am moving the amendment in the unavoidable absence of my hon. Friend the Member for Beaconsfield (Mr. Smith), and I do so for the purposes of clarity. The amendment makes it clear that cable services operated as part of the amenities provided for the residents or inmates of any premises are not exempt from the Bill, regardless of whether the premises are run as a business—for example, a private apartment block—or are publicly funded—for example, prisons or hospitals. No distinction should be made between the different premises that use cable services. The amendment is self-explanatory, and I look forward to the Minister's reply.

Mr. Butcher: The amendment would bring within the definition of "cable programme service" a closed-circuit cable system operated as part of the amenities for residents and inmates of the premises that are not run as a business. My hon. Friend gave the obvious example of a cable system in a public sector hospital or a prison.
I am sorry to have to disappoint my hon. Friend, but I have to say that the amendment is not acceptable to the Government. We do not consider that a cable system in the special circumstances of a hospital or a prison, to take the examples to which I referred, can be put on the same footing as a cable programme service offered to the public in general.
The inmates of both hospitals and prisons have one thing in common: they are not there by choice. If they watch videos on an internal cable system, it is for the most part a straightforward substitute for watching a video recording or television broadcast at home, which

circumstances have deprived them of the opportunity to do. In prisons, particularly, there are security reasons for preferring to show videos on a closed-circuit system rather than by the traditional use of television sets and video recorders.
We accept that in premises run for profit, a closed-circuit cable system may exploit copyright material in a way which will result in financial benefit to the operator. For that reason it is right that such systems should be subject to the controls of copyright, and that goes as much for a hospital run for profit as for any other kind of premises.
In non-commercial premises, cable systems will generally, as I have said, be a substitute for domestic television or cable reception. It is therefore right that they should be no more caught by copyright law than is watching a television at home. If, in the future, it can be shown that this exception is being abused and the interests of copyright owners unfairly damaged, the exception could, if necessary, be amended by an order under clause 7(3).
In common with my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson), my hon. Friend the Member for Hertfordshire, South-West (Mr. Page) also has a fall-back position and insurance policy. In the light of what I have said, I hope that he will be willing to withdraw his amendment.

Mr. Page: I was unaware that prisoners in Her Majesty's prisons were forced to watch videos and various programmes that come through cable services. In view of my hon. Friend's startling revelations, I am forced to withdraw my amendment.
I am happy to note that under subsection (3) there is opportunity for an order to be introduced if it is discovered that prison inmates can watch various programmes voluntarily.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11

FIRST OWNERSHIP OF COPYRIGHT

Mr. Austin Mitchell: I beg to move amendment No. 3, in page 6, line 22, at end insert
'except that where a literary, dramatic or artistic work is made by the author in the course of his employment by the proprietor of a newspaper, magazine, or similar periodical under a contract of employment, or apprenticeship, and is so made for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall be entitled to the copyright in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical, or to reproduction of the work for the purpose of its being so published; but in all other respects the author shall be entitled to any copyright subsisting in the work.'.

Mr. Deputy Speaker: With this it will be convenient to discuss amendment No. 4, in page 6, leave out lines 20 to 22 and insert—
'(2) Where a literary, dramatic, or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work, subject to:—
(a) any agreement between the parties or their representatives
(b) the application of sections 76 to 88 inclusive (Moral Rights).'.

Mr. Mitchell: I declare an interest as a member of the National Union of Journalists and also as a journalist. Sometimes that word is put in inverted commas when I am so described.
The amendment is about the balance of power between working journalists and the proprietors of newspapers. We believe that with the unamended clause 11 the Government are shifting that balance of power unjustifiably towards the proprietors. Why the Government are acting thus escapes us, but it must be connected in some way with their general generosity to newspaper proprietors—a generosity which is, in the main, applied to get a press amenable to the Government. We have a press whose only concession to balance is to use slightly less glowing adjectives in their panegyrics about the Prime Minister.
The press has been larded with honours by this Government—usually in inverse ratio to the quality of the papers. We have had Sir Loin of Lamb, Sir David English, Lord Matthew of Whelks and Lord Stevens. It must be rather frustrating to the Government that they cannot confer a title on Lord Murdoch of Wapping Breasts, Lies and Sex Scandals, simply because he is an Australian.
The Government want to keep the press sweet and favourable to them. That is the only motive that we can see for shifting the balance of power towards the proprietors and against working journalists. Before clause 11 was introduced, the law was set out in clause 4 of the Copyright Act 1956. That law referred to
Where a literary, dramatic or artistic work is made by the author"—
or photographers, who are also concerned about clause 11—
in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, and is so made for the purpose of publication in a newspaper, magazine or similar periodical
In all other respects, copyright was retained by the author.
The NUJ wanted that original law tightened to restrict the proprietor's rights to staff journalists and to periodicals under his ownership. That tightening of the law would have brought us into line with the legal position as it prevails in most of Europe. However, the Government went the other way and they amended their proposals in the House of Lords to make the proprietor the first owner and to give him unfettered right of exploitation everywhere, including databases, which are becoming increasingly important.
The journalist's work is creative and should be the intellectual property of the creator. It should not be liable to wholesale exploitation without reward for or acknowledgment of the journalist who created it in the first place. In the act of creation, he brings his skills and abilities to bear and his name is used, all to enhance the sales and revenues for the proprietor. To take away from such people their rights over what they have created robs them of their reputation, skills and efforts and dedicates them all to the greater glory and income of the proprietors. In other words, it creates much the same relationship between journalists and proprietors as existed between serfs and their masters in 19th century Russia. Journalists get slightly higher expenses than were paid to serfs in 19th century Russia, but if their rights over their intellectual property are taken away in this fashion they will operate in the same sort of relationship.
9.15 pm
In Committee, the Government rejected all our efforts to enlarge journalists' rights. These amendments seek to retain the dignity accorded them by the Copyright Act 1956. We can see no justifiable reason why the Government should take away the rights conferred in that Act and change them in the way in which they appear in clause 11. Unless we return to the position under the 1956 legislation, journalists will effectively be robbed of all their rights when their intellectual property is used in books, broadcasts and databases. It is essential to allow them to retain their rights over all those uses.
The Opposition are adopting an essentially conservative role. We are advocating the preservation of the status quo. What is the Government's case for this monstrous, inexplicable and so far unexplained usurpation of journalists' rights? We know that the usurpation is subject to any agreement to the contrary, but surely no group of employed journalists is in a position to negotiate an agreement to the contrary. We propose to redress the balance in a relationship that is inevitably dependent to give journalists a platform on which to stand, by having rights within that relationship over their intellectual property.

Mr. Foot: Like my hon. Friend the Member for Great Grimsby (Mr. Mitchell), I must declare an interest as a member of the National Union of Journalists, although, like him, I cannot exactly calculate how much my income would be affected if the clause were passed. My hon. Friend put the case so strongly that I believe that it is possible to make this debate a short one.
The Government and the Minister should be aware of how strong is the feeling of outrage among journalists throughout the country at the Government's proposal. Even at this hour we hope the Government will be prepared to change their mind. I have listened to the Minister for most of the day, although I did not have the special opportunity of hearing him in Committee. He has sought to present himself as being in an appeasing mood. He has accepted opposition amendments and tried to create a perfectly emollient atmosphere. That is the best course for the Government to take, from their point of view, especially as they are trying to get through a Bill of this nature in this time.
It is quite improper that the Government should have introduced such a major Bill with so many ramifications that affect free speech and the rights of journalists and others in this way. It was wrong to introduce it in another place. Now, in the last week of Parliament, we are landed with a great disability. The possibilities of getting through sensible amendments are greatly diminished by the way in which the Government have done things. They have crammed in a long list of amendments at this stage. Some of them, admittedly, are formal, but it is quite improper for such a vast range of amendments to be pushed through like this. Only last week, on a similar measure—although it was not introduced in the House of Lords—many amendments, new material and major changes had to be forced through the House under a guillotine. We are under great pressure to do the same on this Bill.
It is wrong for the Government to deal with such matters in that way. As my hon. Friend the Member for Great Grimsby said, why do they not stick to the provisions that have worked already? The 1956 Act has been operating reasonably and people understand it. The


application of this part of the law of copyright goes back for about 70 years. The Minister said that we have a Copyright Bill about every 20 years and that they arrive with the comet. Perhaps his scientific knowledge is better than his legal knowledge.
The Government had plenty of time for preparation, negotiations and discussions before the legislation was introduced, yet at the very last moment before Royal Assent we are confronted with a proposal to remove from journalists rights that they have had for at least 20 years and probably a good deal longer. It removes those rights without any effort having been made to discuss the matter with the National Union of Journalists.
No doubt the Minister will tell us about the negotiations that they had with the Members of the House of Lords. The place is so stuffed with peers who own newspapers that I suppose they did not need to set up a special Committee to examine the Bill. How did those negotiations manage to produce a proposal that is of financial advantage to some peers? What will be the financial advantage—collectively or severally—to those peers? How did they bring pressure on the Government? Did the meetings take place in the same hole in the corner where they cooked up the plan to introduce an entirely new method of ensuring the teaching of religious education in our schools? It is an example of bad government.
I do not wish to spoil the Minister's temper, especially as he is moving along the stepping stones to higher things or lower things—at any rate, sideways—because he has kept it well during our proceedings. But he should not have allowed such major legislation, altering the rights of journalists and many others, to be introduced in the House of Lords, and he should not have been a party to the House being confronted with such a measure at the fag end of the Session. As a last generous gesture to the House on the Bill, which he has piloted through with such skill, I hope that he will say that he has changed his mind and will accept in its entirety the amendment so ably moved by my hon. Friend the Member for Great Grimsby.

Mr. Brian Wilson: This is a press baron's clause. Appropriately, it was introduced in the place to which press barons are sent by Tory Governments. It is an appalling example of special pleading and lobbying by an interest group that the clause should have left the House of Lords thus altered, and that the privilege of sitting in that place should have been used by press barons to improve their position in relation to journalists, who are not by and large Members of the House of Lords.
Like previous Opposition speakers, I must declare an interest as a member of the National Union of Journalists.

Mr. Buchan: My hon. Friend is a press baron, too.

Mr. Wilson: My hon. Friends have pointed out that I have a vested interest as a press baron, but that is in only a fairly minor way.

Mr. Buchan: Not at all in a minor way. If the incidence of the Daily Mirror was as heavy as that of the West Highland Free Press in its own area, it would sell about 15 million.

Mr. Wilson: It is decent of my hon. Friend to point that out. Copies are available on subscription. I assure the

House that the journalists whom I employ are more than welcome to their intellectual property, and the last thing that I would want to do would be to profit from their efforts. Hon. Members will gather that I am a philanthropic press baron, in a minor way.
This is a serious point. The rights of journalists to their intellectual property should be expanded rather than contracted. Increasingly, we live in an age not just of press barons in the old style but of multi-media barons—the same people who own the press increasingly own every other means of communication. They do so in rapidly diminishing numbers. We see the media world being carved up among very few people.
My hon. Friend the Member for Grimsay—I mean Grimsby—

Mr. Malcom Bruce: Another Hebridean island.

Mr. Wilson: I am sorry. Grimsay is in North Uist. My hon. Friend the Member for Great Grimsby (Mr. Mitchell) was wrong when he said that Mr. Murdoch is an Australian. I think that this week he is an American. Doubtless when he gets into satellite, if it suits his purpose, he will become a Martian, which might be more appropriate—

Mr. Austin Mitchell: An improvement.

Mr. Wilson: Indeed, it might be an improvement.
Those are powerful people in our society. It is intolerable that journalists, the people who work for them, should be put at a further disadvantage.
I do not want to pre-empt what the Minister says because the reply from any self-respecting Opposition Member would be, "Up to a point, Lord Copper!" but in Committee the Minister explained his thinking and said:
To retain the provision would be anomalous and would keep newspaper proprietors at a disadvantage compared with other employers".
To seasoned members of the journalistic profession such as my right hon. Friend the Member for Blaenau Gwent (Mr. Foot), and anyone who has worked in that industry, the idea that legislation should be formulated on the basis that newspaper proprietors are a disadvantaged class in society who have to have special little clauses inserted in the Bill to protect their interests, has a ring of improbability to it.
We are dealing with a greedy set of interests, like most vested interests who sit along the corridor in the other place, and who can never get enough. They can make special pleading work and having discovered that they can lobby on their own behalf, they do so ruthlessly and interminably. This will not be the end of their demands.
The National Union of Journalists and others are concerned about the works of the big journalists, the guy with the big name whose work can be paid for by one newspaper, by Murdoch or Maxwell, and so on, which can then be flogged relentlessly around the world on every conceivable means of communication. I should also like to put in a bit of pleading for the small guy, the person who does not receive large amounts of remuneration, who works for a local or provincial paper and who might happen upon the once-in-a-lifetime story. That story would go around the world. If it were a photographer, his pictures would go around the world. But that will not be a break for the journalist or the photographer. For years


to come it will be yet another source of revenue for the proprietor—the disadvantaged creature whom the Minister is so concerned to protect.
There is a myth that everybody in journalism is earning a huge salary and raking in large expenses. There is a parallel with professional footballers. Everybody forgets those who are playing in the second, third or fourth divisions. The vast majority of journalists are in that category. To take away the limited rights that journalists enjoy under the 1956 Act and to replace them by the amendment in the Bill, which serves no function other than to extend the tentacles of proprietors and turn journalists into the vassals of proprietors with no independent rights of their own, is intolerable.
The press needs to be more independent. The rights of journalists must be defended. There is no need for the amendment. To use the Bill as a stick with which to beat journalists is wrong. I hope that the Minister will be able to defend what he is doing on rather better grounds than
newspaper proprietors are at a disadvantage compared with other employers".—[Official Report, Standing Committee E, 12 May 1988; c. 82.]
That is an injustice with which most of us could live.

Mr. Malcolm Bruce: I have to declare an interest as a member of the National Union of Journalists, but I am speaking entirely on my own account.
The amendment twists the relationship between a journalist and his employer to a wholly unjustifiable extent. The hon. Member for Cunninghame, North (Mr. Wilson) referred to a local reporter hitting on a major story. When the Bill becomes an Act, there will be many such instances. In the past, journalists thought that they would fall foul of their proprietor or employer, so they fought to find out which side he was on. The result was that, rather like the chap in "Local Hero", they spent a large part of their time in telephone boxes making reverse charge telephone calls to the United States and having money put into numbered post office accounts so that their employers would not find out that they were making money. In many cases that was totally legitimate; money was being made out of news and information that the journalists had unearthed, much of it in their own time. Nevetheless, they thought that they would be intimidated, got at or even dismissed if they chose to reveal that fact to their employers, because they would be unable to defend their copyright.
It might be argued that that is what happens under the law as it stands and the Government are seeking to regularise it, but journalists should be entitled to the copyright of the information that they have procured by means of their own creative ability or talent.
The Minister will no doubt tell us that if there is a real market for his work, a journalist can write his own contract. That is all very well for a Terry Wogan or a star with an established reputation, but it is not so easy for either an aspiring young reporter or an established reporter who has ability but not star quality. The amendment moved by the hon. Member for Great Grimsby (Mr. Mitchell) is, in a sense, speaking up for middle range and aspiring young journalists against the press barons. I look forward with interest to the Minister's justification of a newspaper owner being given extra rights to defend himself against the vicious assaults of middle-ranking reporters and journalists on his staff.
Many hon. Members will be aware that, with the particularly severe competition that exists in journalism at the moment, many journalists in employment are forced to sign contracts that reduce their working conditions and pay in their existing posts, and forgo the opportunity to freelance or to sell to interested third parties the benefits of their own work. That is happening under the present law, and it would appear that the Government are anxious to repress still further aspiring young and middle-ranking journalists and prevent them from developing their talents in a constructive and effective way.
I was not a member of the Committee, and I have not followed the passage of the Bill, but what I have heard makes it sound as if the Government, hiding behind the press barons in the Lords, are trying to ensure that those people have a dominant position over the livelihood of people who, as the hon. Member for Cunninghame, North said, can often find it very difficult to find employment that is not controlled by those press barons.
If the Minister is anxious to break open a closed shop, it is the owners' and proprietors' closed shop that should be broken open, not that of aspiring and successful middle-ranking journalists. Therefore I am very happy to support the amendments and look forward with interest to hearing how the Minister can possibly justify resisting them.

Mr. Wigley: I hesitate to follow the eminent litterateur the right hon. Member for Blaenau Gwent (Mr. Foot) and th press baron of the Western Isles, the hon. Member for Cunninghame, North (Mr. Wilson). I do not have an interest to declare and I am not a member of an appropriate union, so it is appropriate to add my support to the amendment.
I find it difficult to accept that a Government that believe in greater freedom, as they claim, should be putting forward such a proposition, and that they should be using people in a way that they should never be used. The argument is absolutely overwhelming, that if a proprietor has paid a journalist to undertake a job and the journalist has done that job, the proprietor should get the first nibble at the work that has been done, and having had the opportunity of publishing the story, the journalist should have the benefit thereafter. The publication can reflect in the glory that the journalist had written the story for that paper in the first place. That should apply to any creative work, not just to the written word.
It applies particularly to photographs. If one thinks back to perhaps a happier time in the saga of The Times newspaper, when it used to publish excellent photographs, some of those photographs were worthy objects of art in their own right and the fact that they appeared in The Times first was to the credit of that newspaper, but thereafter they should have stood in the names of the photographers who had the vision and creativity to produce them.
In Committee, the Minister was decidedly unhappy about four or five parts of the Bill. He never admitted which four or five parts they were, but we know that he was not entirely comfortable with some of the measures that he had to advocate from time to time. I should like to think that this was one of the parts of the Bill about which he was decidedly uncomfortable. Having heard the argument put forward tonight, he should be so much more uncomfortable that he should feel in his heart that, even if he cannot accept the amendments now, the Bill must go


back to another place with the amendments from this place. If any straightening out can be done, for goodness' sake, in this day and age let us not go back to the time when somebody working in an honest job is treated as a serf by his employer. That will happen under the provisions of the Bill.

Mr. Butcher: Having heard the arguments of a Scot and of two Welshmen, a south Walean and a north Walean, it is always very hard to resist that combination of Celtic elegance. Unfortunately, this is one occasion on which the word "but" is followed by a word of what Opposition Members would interpret as negativity. Much as I am persuaded of the logic of the earlier part of their arguments listed in the first amendment, I cannot go along with much of what I have heard of the substance of the second amendment. What appears to be happening is that Opposition Members have come to see the wisdom of vesting in the employer the ownership of copyright in a work made by an employee. Therefore, I have no trouble in accepting the principle underlying amendment No. 4. However, I must resist the amendment because it is unnecessary. The Bill as drafted provides all that Opposition Members want.
Clause 11 (2) provides that, when a work is made by an employee in the course of his employment, his employer is the first owner of copyright. That meets the wish of Opposition Members as expressed in the first part of the amendment. The provisions of subsection (2) are subject to agreement to the contrary. That already provides what paragraph (a) of the amendment seeks. Amendment No. 4 requires that clause 11 be subject to clauses 76 to 88. That does not need to be said. Moral rights are distinct from copyright and the application of those rights is determined by the clauses in question. In particular, clauses 76 and 79 set out cases where the rights apply and clauses 78 and 80 give the circumstances where they do not. Therefore, although I applaud the sentiments expressed in amendment No. 4,I cannot accept it. With the assurance that the Bill as drafted delivers what is required by the amendment, I trust that it will be withdrawn.
Amendment No. 3 would introduce, with one or two drafting changes, the provisions of section 4(2) of the Copyright Act 1956. That provides for a split ownership of copyright in the case of a work produced by an employee of a newspaper, magazine or similar periodical. The employer is to own copyright for the purposes of publication in newspapers, magazines and periodicals and the author is to own copyright for all other purposes.

Mr. Doran: The Minister said that we accept the principle that copyright should lie with the employer. As I understand it, that is the present position. The point of amendment No. 4 is that clauses dealing with moral rights are also excluded from employees. Under subsection (2)(b) that would not apply. Therefore, there are significant differences between what we want and what the Minister wants.

Mr. Butcher: We are consistent in terms of remuneration rights and moral rights. We had an exhaustive debate on that, and obviously I was unable to convince the hon. Gentleman. I should say, en passant, that there have been assertions about special pleading in each of the contributions made. I have not noticed a scale

of lobbying from the National Union of Journalists that is anything like the scale of lobbying that has occurred on virtually every issue of substance in the Bill. Opposition Members say that we should not indulge in special pleading, and they are not indulging in special pleading for their own purposes. They are saying that journalists, compared with other creative employees, should be set apart and be given rights that are not given to creative people in other industries.
Before we proceed further, I should make it clear that we are dealing only with journalists, photographers and others who are employed by newspapers. Under the Bill as it stands, the first copyright in a work made by a freelance or commissioned author is vested in the author. He may assign all or part of the copyright to the newspaper or merely license the newspaper to print the work in question. I do not think that anyone seriously objects to that principle. A newspaper wanting to publish an author's work must have his consent, and can acquire as much or as little of the copyright as it needs for those purposes. The freelance author who depends on his work for his livelihood is the owner of copyright in his work, and can use that copyright to negotiate payment.
The debate on amendment No. 3 is concerned only with employees of newspapers, magazines and similar periodicals. The question before us is, what should be the position of works created by an employee during the course of the employment? The general principle under the 1956 Act, set out in section 4(4), is that the employer is entitled to the copyright, and that principle is re-enacted in clause 11(2).
That it is right that an employer should own the fruits of his employee's labour seems to me to be a self-evident truth. If I employ a man to use his skills to make a product and provide all the resources that he needs to do it, it is only right that I should own what he has made in my time and at my expense. Opposition Members who tabled the amendment fully accept that basic principle, as is evidenced by amendment No. 4, which vests copyright in the employer.
9.45 pm
Had Opposition Members proposed the deletion of subsection (2) and argued that an employer could acquire his employee's copyright contractually, I would have resisted, but I would have recognised that such an amendment would be consistent with their professed concern for the employee's side of the employee-employer relationship. I understand that they have seen the light and have recognised the sense and justice of the principle enshrined in clause 11(2).
One question remains: why single out employed journalists for special treatment? Why should an employee of a newspaper be better placed than, say, the employee of an advertising agency, a software house or a book publisher? There are numerous industries in which people are employed for the purpose of creating copyright works for their employees, yet it is not suggested that the employee should own copyright. The anomaly is most starkly presented in the case of an employed journalist. If he is employed by a newspaper, he is to own a part of the copyright in his work. If he is employed by a television company, his employer owns all the copyright.
The most ardent supporter of amendment No. 3 could not deny that it is anomalous, but it must be admitted that the anomaly has been around for 70 years or more. Why


do away with it now? The answer is that it is not an innocuous anomaly. First, it seems to be wrong in principle to say to newspapers, "You, and you alone of all the many employers of the authors of copyright works, are not to receive the full benefit of your investment in your work force."
Secondly, there are practical effects that harm newspapers. Hon. Members should consider the case of a television company that sends a crew to some trouble spot—say, the Gulf. The pictures and reports sent back by the staff can be sold by the company to a newspaper to help to recoup some of its investment. But if a newspaper sends a journalist and photographer to the Gulf, it cannot sell the story and pictures to a television company. For those purposes, copyright would be vested in the employees, even though the story had been obtained at the not inconsiderable expense of the employer. That means that different branches of the media are not competing on a equal footage, and that is wrong.
The anomalous treatment of newspapers also hinders the development and exploitation of databases—another point that was raised by Opposition Members. Under this agreement, a newspaper would have to obtain copyright clearance from its own employees to put the works that they have produced on to a database. Back issues of a newspaper cannot be transferred to microfiche or other more convenient forms of storage, as that involves the consent of the employee. It may be that the employee would consent, but he could seek a high price. Why should the employer pay again for work that he has already paid for?
The general principle should be that, subject to contrary agreement, the employer owns the copyright in his employee's works. Any exception to that general rule has to be fully justified. An exception to favour newspaper employees may have been justifiable 30 years ago, but it is not so today, in an age when the boundaries between sectors of the media are not clear cut and special treatment can act as an obstacle to the dissemination of information. I must ask the House to reject the amendments.
The hon. Member for Cunninghame, North (Mr. Wilson) called the clause a piece of special pleading. I must say again that it is for the hon. Gentleman to plead why newspaper employees should be set apart from other categories of creative people.

Mr. Austin Mitchell: The Minister's speech will not feature among the highlights of his collected Department of Trade and Industry speeches as he moves on. It is as though he made it in Times-speak—that is to say, I could not understand a word of it—rather than Sun-speak, when he could have said, "Rearrange the following words to form a well-known English phrase or expression: Off bludge."—which is essentially what he said. It is inconceivable to suggest that all that we are doing in reality is just to return the legislation to what it has been since 1956.
The Minister can show no examples of any problems, anomalies or disputes arising from the existing legislation that he is changing. He has produced no argument for the change and had no consultations with the National Union of Journalists—only, apparently, with the press barons. He has not even told us what peculiar quality of intelligence, integrity or dignity in British press barons, as shown in their newspapers, justifies giving them so much greater power over their journalists than the press barons

of most other countries, who do not have the rights that the Bill provides and which our amendments seek to reduce.
Our conclusion must be that the Government are on their knees before the press barons. Certainly we intend to bring them to their knees by opposing the clause and voting for our amendments. We want to see the headline in The Sun tomorrow, "Journos Butchered by Soaraway Supermin Before Being Jerked Off'.

Amendment negatived.

Amendment proposed: No. 3 in page 6, line 22, at end insert
'except that where a literary, dramatic or artistic work is made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of employment, or apprenticeship, and is so made for the purpose of publication in a newspaper. magazine or similar periodical, the said prioprietor shall be entitled to the copyright in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical, or to reproduction of the work for the purpose of its being so published; but in all other respects the author shall be entitled to any copyright subsisting in the work.'—[Mr. Austin Mitchell]

Question put, That the amendment be made:—

The House divided: Ayes 117, Noes 221.

Division No. 443]
[9.50 pm


AYES


Allen, Graham
George, Bruce


Anderson, Donald
Godman, Dr Norman A.


Ashdown, Paddy
Golding, Mrs Llin


Ashton, Joe
Griffiths, Win (Bridgend)


Barnes, Harry (Derbyshire NE)
Grocott, Bruce


Beckett, Margaret
Hinchliffe, David


Bennett, A. F. (D'nt'n &amp; R'dish)
Hoyle, Doug


Bermingham, Gerald
Hughes, John (Coventry NE)


Bidwell, Sydney
Hughes, Robert (Aberdeen N)


Blair, Tony
Hughes, Roy (Newport E)


Boateng, Paul
Hughes, Sean (Knowsley S)


Boyes, Roland
Illsley, Eric


Bradley, Keith
Janner, Greville


Bray, Dr Jeremy
Kirkwood, Archy


Brown, Nicholas (Newcastle E)
Lamond, James


Bruce, Malcolm (Gordon)
Leighton, Ron


Buchan, Norman
Litherland, Robert


Buckley, George J.
Lloyd, Tony (Stretford)


Caborn, Richard
Loyden, Eddie


Campbell, Ron (Blyth Valley)
McAllion, John


Campbell-Savours, D. N.
McAvoy, Thomas


Clark, Dr David (S Shields)
McKelvey, William


Clarke, Tom (Monklands W)
McLeish, Henry


Clay, Bob
McWilliam, John


Clwyd, Mrs Ann
Madden, Max


Cousins, Jim
Mahon, Mrs Alice


Crowther, Stan
Marek, Dr John


Cryer, Bob
Martin, Michael J. (Springburn)


Cummings, John
Martlew, Eric


Cunliffe, Lawrence
Meale, Alan


Darling, Alistair
Michael, Alun


Davis, Terry (B'ham Hodge H'l)
Michie, Bill (Sheffield Heeley)


Dewar, Donald
Millan, Rt Hon Bruce


Dixon, Don
Mitchell, Austin (G't Grimsby)


Doran, Frank
Molyneaux, Rt Hon James


Dunwoody, Hon Mrs Gwyneth
Morgan, Rhodri


Eadie, Alexander
Morley, Elliott


Eastham, Ken
Mowlam, Marjorie


Ewing, Harry (Falkirk E)
Mullin, Chris


Ewing, Mrs Margaret (Moray)
Murphy, Paul


Faulds, Andrew
Nellist, Dave


Fisher, Mark
O'Brien, William


Flynn, Paul
Patchett, Terry


Foot, Rt Hon Michael
Pike, Peter L.


Foster, Derek
Powell, Ray (Ogmore)


Fraser, John
Prescott, John


Galloway, George
Quin, Ms Joyce


Garrett, Ted (Wallsend)
Roberts, Allan (Bootle)






Rogers, Allan
Welsh, Andrew (Angus E)


Ross, Ernie (Dundee W)
Welsh, Michael (Doncaster N)


Rowlands, Ted
Wigley, Dafydd


Short, Clare
Williams, Alan W. (Carm'then)


Skinner, Dennis
Wilson, Brian


Smith, Andrew (Oxford E)
Winnick, David


Smith, C. (Isl'ton &amp; F'bury)
Wise, Mrs Audrey


Spearing, Nigel
Worthington, Tony


Taylor, Matthew (Truro)



Turner, Dennis
Tellers for the Ayes:


Vaz, Keith
Mr. Allen McKay and Mr. Frank Haynes.


Wallace, James



Wardell, Gareth (Gower)





NOES


Alexander, Richard
Evans, David (Welwyn Hatf'd)


Alison, Rt Hon Michael
Fallon, Michael


Amess, David
Favell, Tony


Amos, Alan
Fenner, Dame Peggy


Arbuthnot, James
Fishburn, Dudley


Arnold, Jacques (Gravesham)
Fookes, Miss Janet


Arnold, Tom (Hazel Grove)
Forman, Nigel


Ashby, David
Forth, Eric


Aspinwall, Jack
Franks, Cecil


Atkins, Robert
Freeman, Roger


Atkinson, David
French, Douglas


Baker, Nicholas (Dorset N)
Fry, Peter


Baldry, Tony
Gale, Roger


Banks, Robert (Harrogate)
Gardiner, George


Batiste, Spencer
Garel-Jones, Tristan


Beaumont-Dark, Anthony
Gill, Christopher


Bellingham, Henry
Goodhart, Sir Philip


Bennett, Nicholas (Pembroke)
Goodlad, Alastair


Benyon, W.
Goodson-Wickes, Dr Charles


Bevan, David Gilroy
Gorman, Mrs Teresa


Biggs-Davison, Sir John
Gow, Ian


Blackburn, Dr John G.
Gower, Sir Raymond


Bonsor, Sir Nicholas
Greenway, John (Ryedale)


Boswell, Tim
Gregory, Conal


Bottomley, Peter
Griffiths, Sir Eldon (Bury St E')


Bowden, A (Brighton K'pto'n)
Griffiths, Peter (Portsmouth N)


Bowden, Gerald (Dulwich)
Ground, Patrick


Bowis, John
Gummer, Rt Hon John Selwyn


Braine, Rt Hon Sir Bernard
Hamilton, Neil (Tatton)


Brandon-Bravo, Martin
Hanley, Jeremy


Brazier, Julian
Hargreaves, A. (B'ham H'll Gr')


Bright, Graham
Hargreaves, Ken (Hyndburn)


Brown, Michael (Brigg &amp; Cl't's)
Harris, David


Browne, John (Winchester)
Haselhurst, Alan


Bruce, Ian (Dorset South)
Hawkins, Christopher


Buck, Sir Antony
Hayes, Jerry


Budgen, Nicholas
Hayward, Robert


Burt, Alistair
Heathcoat-Amory, David


Butcher, John
Heddle, John


Butler, Chris
Heseltine, Rt Hon Michael


Butterfill, John
Hicks, Robert (Cornwall SE)


Carlisle, John, (Luton N)
Hill, James


Carrington, Matthew
Hind, Kenneth


Carttiss, Michael
Hogg, Hon Douglas (Gr'th'm)


Channon, Rt Hon Paul
Howard, Michael


Chapman, Sydney
Howarth, Alan (Strat'd-on-A)


Chope, Christopher
Howarth, G. (Cannock &amp; B'wd)


Churchill, Mr
Hughes, Robert G. (Harrow W)


Clark, Hon Alan (Plym'th S'n)
Hunt, David (Wirral W)


Clark, Dr Michael (Rochford)
Hunt, John (Ravensbourne)


Coombs, Anthony (Wyre F'rest)
Hunter, Andrew


Coombs, Simon (Swindon)
Irvine, Michael


Cope, Rt Hon John
Irving, Charles


Couchman, James
Jack, Michael


Cran, James
Janman, Tim


Currie, Mrs Edwina
Jessel, Toby


Curry, David
Johnson Smith, Sir Geoffrey


Day, Stephen
Jones, Gwilym (Cardiff N)


Devlin, Tim
Jones, Robert B (Herts W)


Dickens, Geoffrey
King, Roger (B'ham N'thfield)


Dorrell, Stephen
Knapman, Roger


Douglas-Hamilton, Lord James
Knight, Greg (Derby North)


Dover, Den
Knight, Dame Jill (Edgbaston)


Durant, Tony
Knowles, Michael


Emery, Sir Peter
Knox, David





Lang, Ian
Peacock, Mrs Elizabeth


Latham, Michael
Porter, David (Waveney)


Lawrence, Ivan
Portillo, Michael


Lee, John (Pendle)
Powell, William (Corby)


Lennox-Boyd, Hon Mark
Price, Sir David


Lester, Jim (Broxtowe)
Rathbone, Tim


Lightbown, David
Redwood, John


Lilley, Peter
Riddick, Graham


Lloyd, Peter (Fareham)
Ridley, Rt Hon Nicholas


Lord, Michael
Ridsdale, Sir Julian


Lyell, Sir Nicholas
Roberts, Wyn (Conwy)


McCrindle, Robert
Rost, Peter


Macfarlane, Sir Neil
Ryder, Richard


MacKay, Andrew (E Berkshire)
Sackville, Hon Tom


McLoughlin, Patrick
Shaw, David (Dover)


McNair-Wilson, Sir Michael
Shaw, Sir Giles (Pudsey)


McNair-Wilson, P. (New Forest)
Shaw, Sir Michael (Scarb')


Major, Rt Hon John
Shelton, William (Streatham)


Malins, Humfrey
Shephard, Mrs G. (Norfolk SW)


Mans, Keith
Shepherd, Colin (Hereford)


Marshall, John (Hendon S)
Sims, Roger


Marshall, Michael (Arundel)
Skeet, Sir Trevor


Martin, David (Portsmouth S)
Speller, Tony


Maude, Hon Francis
Spicer, Michael (S Worcs)


Maxwell-Hyslop, Robin
Stern, Michael


Meyer, Sir Anthony
Stewart, Andy (Sherwood)


Miller, Sir Hal
Sumberg, David


Mills, Iain
Taylor, John M (Solihull)


Miscampbell, Norman
Thompson, D. (Calder Valley)


Mitchell, Andrew (Gedling)
Thompson, Patrick (Norwich N)


Mitchell, David (Hants NW)
Thorne, Neil


Moate, Roger
Thurnham, Peter


Monro, Sir Hector
Townend, John (Bridlington)


Montgomery, Sir Fergus
Waddington, Rt Hon David


Morris, M (N'hampton S)
Wakeham, Rt Hon John


Morrison, Sir Charles
Ward, John


Moss, Malcolm
Wardle, Charles (Bexhill)


Mudd, David
Watts, John


Neale, Gerrard
Wheeler, John


Neubert, Michael
Widdecombe, Ann


Newton, Rt Hon Tony
Wood, Timothy


Nicholls, Patrick
Woodcock, Mike


Nicholson, David (Taunton)
Yeo, Tim


Nicholson, Emma (Devon West)



Onslow, Rt Hon Cranley
Tellers for the Noes:


Page, Richard
Mr. David Maclean and Mr. Kenneth Carlisle.


Paice, James



Patnick, Irvine

Amendment accordingly negatived.

BUSINESS OF THE HOUSE

Ordered,
That, at this day's sitting, the Copyright, Designs and Patents Bill [Lords], may be proceeded with, though opposed, until any hour.—[Mr. David Hunt.]

Clausc 12

DURATION OF COPYRIGHT IN LITERARY, DRAMATIC, MUSICAL OR ARTISTIC WORKS

Amendment made: No. 253, in page 7, line 22, leave out 'and 161' and insert
'(Copyright in Acts and Measures), 161 and (Copyright in Parliamentary Bills)'.—[Mr. Butcher.]

Clausc 16

THE ACTS RESTRICTED BY COPYRIGHT IN A WORK

Amendment made: No. 37, in page 8, line 35, leave out from 'VII' to end of line 36 and insert
'(provisions with respect to copyright licensing).'.—[Mr. Butcher.]

Clause 17

INFRINGEMENT OF COPYRIGHT BY COPYING

Amendment made: No. 38, in page 8, line 41, at end insert—
'This includes storing the work in any medium by electronic means.'.—[Mr. Butcher.]

Clause 18

INFRINGEMENT BY ISSUE OF COPIES TO THE PUBLIC

Amendment made: No. 39, in page 9, line 16, leave out 'their importation' and insert
'any subsequent importation of those copies'.—[Mr. Butcher.]

Amendment proposed, No. 40, in page 9, line 18, leave out 'hiring' and insert 'rental'.—[Mr. Butcher.]

Mr. Speaker: With this it will be convenient to take Government amendments Nos. 41, 53, 55 to 57, 59 to 62, 68, 69, 82, 86, 87, 96, 97 and 134.

Mr. Blair: These amendments deal with the new rental provisions and, in effect, are all based on the deletion of the word "hiring" and the insertion of the word "rental". We had a full debate in Committee when the Government moved a long way towards the position that was being urged on them by hon. Members of all parties. However, it is not right to let the amendment pass without obtaining for the record the Government's explanation of why they are changing the word "hiring" to the word "rental". I shall be grateful if the Minister will reply.

Mr. Maude: The answer to the hon. Gentleman's query lies someway through this group of amendments, in amendment No. 96, which sets out the new definition of "rental" and states:
'rental' means any arrangement under which a copy of a work is made available—
(a) for payment (in money or money's worth), or
(b) in the course of a business, as part of services or amenities for which payment is made,
on terms that it will or may be returned;
Put simply, that will cover the sort of circumstances as those obtaining in a hotel which keeps a library of videos for the use of its guests. If no additional charge were made for that service, it would fall outside the Bill as it stands and the copyright owner would have no claim for remuneration. The reality is, however, that the hotel is paid for that service in its basic room charge. We do not think that businesses should be able to make copies available to the public and thus avoid copyright liability by including the cost of quasi-rental operation in the charge for the amenities or services that they provide. This group of amendments remedies that.

Amendment agreed to.

Amendment made: No. 41, in page 9, leave out lines 20 to 22.—[Mr. Maude.]

Clause 24

SECONDARY INFRINGEMENT: MAKING, IMPORTING, POSSESSING OR DEALING WITH ARTICLE FOR MAKING INFRINGING COPIES

Mr. Butcher: I beg to move, amendment No. 42, in page 11, line 9, at end insert—

'(2) Copyright in a work is infringed by a person who without the licence of the copyright owner transmits the work by means of a telecommunications system (otherwise than by broadcasting or inclusion in a cable programme service), knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in the United Kingdom or elsewhere.'.
We have now been persuaded that there is a lacuna in the secondary infringement provisions, which this amendment is to fill. The transmission of a work in electronic form by a telecommunications system, which is not a broadcast or cable programme service, will be a secondary infringement if the person transmitting the work knows, or has reason to believe, an infringing copy will be made at the other end.

Amendment agreed to.

Clause 29

RESEARCH AND PRIVATE STUDY

Mr. Blair: I beg to move amendment No. 310, in page 13, line 10, leave out from 'the' to end of line 1:5 and insert—
'purpose of—
(a) private study, and
(b) research other than commercial research,
does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement'.

Mr. Speaker: With this it will be convenient to consider the following amendments: No. 304, in page 13, line 22, at end insert—
'(4) This section does not apply in terms of fair dealing to copies made for commercial research if or to the extent that there is a licensing scheme certified for the purposes of this section under section 137 providing for the grant of licences.'.

No. 43, in clause 38, page 16, line 43, leave out 'research or private study' and insert
'private study, or research other than commercial research'.

No. 305, in page 17, line 5, at end insert—
'(d) This section does not apply to the supply of copies by a librarian to persons requesting them for commercial research if or to the extent that there is a licensing scheme certified for the purposes of this section under section 137 providing for the grant of licences.'.

No. 313, in clause 39, page 17, line 13, leave out 'research or private study' and insert
'private study, or research other than commercial research'.

No. 306, in page 17, line 21, at end insert—
'(3) This section does not apply to the supply of copies by a librarian to person requesting them for commercial research if or to the extent that there is a licensing scheme certified for the purposes of this section under section 137 providing for the grant of licences.'.

Mr. Blair: This group deals with the fair dealing provisions of the Bill. We had a full debate in Committee and I shall be brief in moving what are substantially the same amendments. The Bill provides for copyright protection but it also provides for what is known as a fair dealing exception. Where it is considered that the use of a work, even though in breach of copyright, is none the less fair dealing, the copyright rules do not apply if any infringement is made.
The question that arises, especially in relation to photocopying, is how wide the fair dealing exceptions will be. The difficulty for the publishing industry arises because, although many people photocopy documents for use in research or private study—and that is plainly fair dealing—most of our large business and commercial establishments have their own research departments where


photocopying is extensively used and where the circulation of the photocopy will be to several hundreds if not several thousands of people.
Throughout the passage of the Bill, industry has been saying that, in order to have a proper incentive to invest and to protect its legitimate rights, there must be copyright protection against infringing copying. The problem faced by the publishing industry in relation to photocopying is that where photocopying is done—[Interruption.]

Mr. Speaker: Order. Hon. Members behind the Bar should come into the Chamber or go outside.

Mr. Blair: The commercial research establishment of an organisation copies very generally and, effectively, the copyright in a work will be breached. That is what worries the publishing industry. It is difficult to see how the breach of a copyright in such a case lies at all adequately with the fair dealing exception. That summarises the case that has been made in favour of the amendments.
When this matter was debated in Committee the Minister used a rather curious phrase when forced to the point. I quote from memory but I think I quote him accurately. He said that he was obliged to come down on the side of those who exploit information, and had decided to come down on their side rather on the side of those who had the original copyright in a work. Since our deliberations in Committee, the Government have moved some way towards accepting some of the things that the Opposition have said. For example, in the next group of amendments they have provided for a much tighter definition of what constitutes multiple copying so that such copying will not fit the fair dealing exception.
If the Government accept—as is implicit in some of their later amendments—that one does not have to choose between those who exploit information and its original authors, they are driven to justify why they are not even becoming more precise and excluding commercial research from the ambit of fair dealing. If they do not, large-scale photocopying for commercial purposes by commercial establishments will continue.
The trend of developments abroad is much in favour of the type of licensing scheme that the Publishers Association has been mooting. There is a scheme in existence in the United States but there are arguments about how successful it has been. Whatever the situation, it is clear that it has had a significant effect on making people pay attention to the rights of publishers against those who are abusing copyright. We see these amendments as being necessary to do for our publishing industry what other industries are anxious to see in the Bill—proper protection for original creative work. In the light of the amendments that the Government will move, why are they unwilling to include commerical research when it was never the true purpose of the fair dealing exception and when the arguments in favour of our amendments are so strong?

Mr. Gerrard Neale: I also wish to be brief, in view of the remarks of the hon. Member for Sedgefield (Mr. Blair), particularly as the matter was debated extensively in Committee. If the Minister is unable to accept amendment No. 310, he may consider that my

amendments are a little less heavy on the Bill. In his charitable feeling towards those who are interested in copyright, the Minister may, as he moves deservedly on to other things, consider the amendments not so much as probing amendments as an invitation to treat.
As the hon. Member for Sedgefield said, there is a strong feeling in the publishing industry and among those representing copyright interests that those interests have been subordinated to the interests of other industries and commerce. It is felt that it is in the interests of commerce and industry outside the publishing world to have material produced on which they can call for research purposes, so they should be required to pay for it. If they do not pay something for the copying of research material, there is a severe risk that there will be less and less incentive for those who produce and publish research material. I hope that, even at this late stage, the Minister will consider the strong misgivings in parts of the publishing industry and that he may be able to change his mind even now.

Mr. Eric Martlew: I was pleased when we discussed commercial research and fair dealing in Committee because it was the only part of the legislation that I understood. I learned two things from being in Committee: first, never to volunteer, and secondly, not to be surprised by Government actions. I was surprised that the Government did not take the opportunity to get the Bill right or to clarify the position on commercial research and fair dealing.
My experience has been in industry. In Committee, the hon. Member for Beaconsfield (Mr. Smith) said that when he worked in commerce he would flick through the journals on his desk, find the one that interested him, make a photocopy of it and pass the journal on. I had a better system. When the journal came to my desk, I passed it on to someone else's desk without looking at it.
As my hon. Friend the Member for Sedgefield (Mr. Blair) said, the reason why I could do that is that I worked for a large organisation. I knew that somebody in headquarters went through the journals and that if anything appertained to my speciality, it would be photocopied and sent to me. I was a personnel manager and if anything on personnel or training appeared in the journals, the chap at headquarters made 15 copies and sent them off to all the personnel managers in the group. That was how the company "stole" research information. I worked for a good company and I am sure that it would be happy to come to a licensing arrangement, if it were available, to buy particular research. It is a wealthy company and could afford it. Many of the technical journals are not as well off. They are on the borderline and it would be a disaster if they went to the wall.
I must emphasise my disgust for the lobbying that has been done by some of the major companies. I understand that Shell, BP and ICI have all made representations to the Government and are twisting the Government's arm to change the legislation. That was reported in the Official Report of the Committee proceedings. I also understand that the CBI has made representations. It is a pity that the hon. Member for Beverley (Mr. Cran) is not in the Chamber. He used to be the northern director of the CBI and I used to be a regular attender at his meetings. [HON. MEMBERS: "He is here."] He is beyond the Bar, so he cannot intervene. The CBI was a short-sighted, narrow-minded organisation then and it does not surprise me that it is against giving the publishers their dues.
Why have the Government changed their mind? The Whitford inquiry recommended that an amendment to the law should be accepted by the Government. The Government accepted that in their Green and White Papers. It was only after an amendment in the other place that the Government decided to change their mind. I have studied what the Minister said in Committee. My hon. Friend the Member for Sedgefield drew the right conclusion about that speech when he said that the Government were on the side of the exploiter—or words to that effect. The Government appear to be prepared to exploit publishers. That does not come as a surprise to me because when I was a young lad an old Socialist told me that the Tories always sided with the exploiter. What does surprise me is the candour with which the Minister expressed that. I would much prefer the Minister to be on the side of the angels and to accept the amendment, which will help small publishing companies against the big organisations. However, the amendment will not hurt those big organisations.
One scheme to help small companies has already been accepted by the Government and it relates to education and university services. Those institutions are under licence to the Copyright Licensing Agency and pay money to it. I understand that, last year, the Government paid £900,000 to that authority on behalf of those institutions. It appears that we have dual standards. Either the Government should make an amendment to get rid of that payment or they should make private companies pay the same. It is all right to pay public money to the Copyright Licensing Agency, but it does not appear all right to pay private money to that authority. That smells of duplicity and I hope that the Minister will explain that position. I am sure that fair-minded people will wonder why those educational institutions are give such a fair deal.
My wife is a chartered librarian and is involved in issuing information. I told her that I was intending to speak on a clause that intended to exclude her from giving information to commercial organisations. She was not too pleased about that. It was only after I explained to her that she would not go to prison if caught doing so that she allowed me to come here.
I do not believe there will be any objection if the Government return to the stance they took before they were got at by big business. In the sense of fairness I hope that the Government will accept the amendment.

Mr. Rowlands: I underline what my hon. Friend the Member for Carlisle (Mr. Martlew) said. He illustrated the strength of the case for the amendment with his references to educational establishments and the money they pay to the Copyright Licensing Agency.
We have been lobbied for and against the Government's proposal, formally and informally. For me it is a question whether I lose my British Library friends or my publishing friends. When two sets of friends are recommending contradictory opinions, one must look for a set of principles. Occasionally I try to publish some research material in obscure academic journals. If people wish to have their research work published they can place it in the public domain. That way more and more people read it and the photocopying of that material is a compliment to their research.
My original instinct was that one should be on the side of the extensive dissemination of information. However, when one realises the way in which some of that research

is grossly exploited on a commercial scale by vast photocopying of key articles, often published in marginal obscure journals, one realises that there is another side to the argument. That case has been made by the publishers of some of the most marginal journals. Much research would not see the light of day were it not for these technical journals—including the historical ones in which I am interested. Many people who have done research find an outlet and make their reputations through these journals, which are often scientific and technological. Their work would not reach the larger commercial concerns without these organs.
The Government should think twice about the impact of their proposals on marginal research journals. If no compensation is paid for the mass exploitation of the research in them, their numbers will diminish and the opportunities for young researchers in, say, Welsh history or technology will decline. We have a perfectly reasonable way of handling this problem of large-scale photocopying of commercial research, so I cannot understand the Government shrugging their shoulders and saying they can do nothing about it.
Much of the Bill is devoted to establishing a copyright licensing system which is designed to deal with the large-scale photocopying of work of potential commercial value. My hon. Friend the Member for Carlisle effectively posed the question of who will be expected to obey the new licensing regulations. The answer is the public sector: libraries and education authorities will be expected to come to licensing arrangements for large-scale photocopying with the publishers and will have to pay under an agreed system.
Why should not such photocopying by commercial research organisations be put on the same footing as the operation of public libraries and education authorities? Why should not these organisations come to a deal with the publishers through a copyright licensing arrangement, the rules of which are established in many clauses of the Bill? The Minister must justify why a poor education authority such as Mid Glamorgan has to come to a deal and make a contribution to the £1 million for the publishers whereas large-scale organisations that exploit research work published in marginal journals get off scot-free. If the Minister does not answer that, we shall have a case for forcing the amendment to a vote.

Mr. Butcher: The hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) reminded us again that the Bill is not about which lobbyists press us the hardest but about coming down in favour of particular arguments. This debate has been especially excruciating because all the arguments have been finely balanced. As the hon. Gentleman reminded us, too, it comes down in the end to principle and the points that give us basic guidance.
The amendments fall into two groups. Those in the names of Opposition Members would mean that the fair dealing and library exceptions in clauses 38 and 39 would not be available for commercial research. The amendments in the name of my hon. Friend the Member for Cornwall, North (Mr. Neale) do not go quite as far. They would allow copying for commercial research under the exceptions if no certified licensing scheme was in place.
It is self-evident that a large amount of photocopying takes place in British commerce and industry. Whether it


is as much as the 1·7 billion copies that have been suggested is neither here nor there; but much copying goes on with no return to the copyright owner.
The Opposition amendments suggest that the answer is to deprive commercial research of the exceptions to copyright in clauses 29, 38 and 39.I shall not go over the arguments that were made in the Committee, but I maintain that the effect would be suddenly to shut off access to much of the information contained in journals and scientific publications. That would bring our research effort grinding to a halt. The House would find that completely unacceptable, and I do not believe that copyright owners would want us to go that far.

Mr. Blair: That statement is an absurd exaggeration of the position. The amendment would not mean that industry could not copy things. It would simply mean that it could copy them only with the permission of the copyright owner, which is the same position as obtains in copyright throughout the Bill.

Mr. Butcher: I was trying not to repeat the arguments that we had in Committee. If the exceptions do not apply to commercial research, it means that industry must obtain the consent of the copyright owner for any copying that it may wish to do, however minimal it might be. To seek out the copyright owner for every piece of copying would place an intolerable burden on industry, and if the search was unsuccessful, copying could not take place.
The amendments of my hon. Friend the Member for Cornwall, North recognise the impracticality of taking commercial research out of the exceptions completely. Amendments Nos. 304 to 306 would mean that the exceptions would continue to apply unless a licensing scheme certified by the Secretary of State were established. That approach has the merit that industry would not be prevented from making copies. Industry could make copies either freely or, if the copyright owners got together to form a licensing scheme, on payment to the copyright owners.
The central question is whether researchers of whatever sort should be prevented from, or required to pay for, fair dealing in copyright works. If we accept the basic principle underlying the fair dealing exception, I cannot see the justification for denying a researcher the benefit of the exception just because his research is directed to commercial ends. We do not want to discourage any research, least of all that which will benefit the economy. We wish to encourage research.
But that does not mean that because copying is for research purposes, it should be permitted without constraint. That is not the case now, nor will it be under clause 29. Copying beyond the limits of fair dealing is infringement if done without the licence of the copyright owner. That is true for private research, for pure academic research and for commercial research.
Copying for commercial research is either fair dealing or it is not. Copying that is not fair dealing must be paid for under the present law, and the Bill preserves that. The amendments in the next group will help to define more clearly what is, and what is not, permissible.
For similar reasons, I am not persuaded that industry should be deprived, either wholly or in part, of the

exceptions in clauses 38 and 39. It is accepted that libraries should be able to copy within defined limits. The amendments to clauses 38 and 39 raise again the practical problems that librarians saw about how they could distinguish between different types of research. In this context the efficiency or otherwise of licensing schemes is relevant. Even the most streamlined scheme will add burdens to the already stretched resources of libraries.
I cannot accept the amendments, for the same reasons as I rejected them in Committee. They would hamper the country's research effort. Amendments Nos. 310, 312 and 313 would make illegal what is now permitted and could mean that either industry stopped using photocopiers or was placed on the wrong side of the law. Amendments Nos. 304 to 306 would require industry to pay for something to which it is presently entitled—hardly an encouragement for research. Industry would have to pay the licence fee and carry the cost of administration of schemes which, even on a sampling basis, would involve record-keeping, staff training and so on. There would also be a burden on the library system which is best avoided.
As I said in Committee, whether the copyright interests wish to offer industry licensing schemes in respect of copying that is not fair dealing is up to them. Industry has no legitimate grounds for complaint about having to pay for copying that is not fair dealing. Although industry should not be singled out for special adverse treatment, it should not expect any sympathy for special privileges which would weaken the position of copyright owners.
I hope that hon. Members feel able not to press their amendments.

Mr. Blair: I apologise to the Minister for the fact that in my desire to keep up with what is happening to the Bill I omitted to congratulate him on his new appointment. He has handled the Bill with considerable sensitivity in many areas. We are sorry to lose him from the Department of Trade and Industry, but I am sure that his successor will try to live up to the high standard that he has set.
The fallacy of the Minister's line of argument is that the whole purpose of fair dealing is what the term implies—to allow dealings with copyright, though strictly in breach of copyright, where it is fair to do so. To treat photocopying for commercial ends in a different way from photocopying for private research or study is wrong in principle. Commercial companies claim the privilege of copyright for themselves in many other cases.
The problem is made all the more acute by the fact that educational establishments will be subjected to a licensing scheme. They will pay about £1 million a year to use copyright material. The Minister resisted our amendments, but a licensing scheme is already in existence for educational establishments. It is bizarre that large companies such as BP, ICI and Shell should be able to use commercial research and pay no money for photocopying when schools have to do so. The Minister has not answered that point.
I do not intend to press the amendment to a Division, but the Minister will have to keep a careful watch. In principle, the practice is wrong. Many of industry's arguments against our amendments are the ones that


they have used strenuously on other parts of the Bill. It is not right that publishers should be subjected to punishment for breach of copyright when that

punishment does not apply to anybody else. There are clear anomalies. The Minister has not addressed them adequately.

Amendment negatived.

Mr. Butcher: I beg to move amendment No. 238, in page 13, line 16, leave out subsections (3) and (4) and insert—
'(3) Copying by a person other than the researcher or student himself is not fair dealing if—
(a) in the case of a librarian, or a person acting on behalf of a librarian, he does anything which regulations under section 40 would not permit to be done under section 38 or 39 (articles or parts of published works: restrictions on multiple copies of same material), or
(b) in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person.'.

Mr. Speaker: With this, it will be convenient to consider the following: Amendment (a) to amendment No. 238, in line 9, at end insert
'at substantially the same time and for substantially the same purpose.'

No. 311, in page 13, line 18, at end insert—
'(3A) Subsection (3) shall not permit any person to make at substantially the same time or for substantially the same purpose more than one copy of or from substantially the same work, or to provide systematic services for the making of copies of or from copyright works, for another person.'.

Mr. Butcher: A similar amendment was moved in Committee. We were asked to define cases of multiple copying that are not regarded as fair dealing. We have tried to reflect the view then expressed that we should table an amendment that provides an appropriate definition.
I should also mention that the Government are happy with the amendment of my hon. Friend the Member for Battersea (Mr. Bowis).

Mr. Blair: When we are given what appears to be a gift it would be strange to be churlish about it, and I do not intend to be churlish. However, we need to be told what the Government's amendment implies. Any form of multiple copying would, I understand, be excluded from fair dealing. The amendment ensures that nobody will be allowed to take more than one copy for distribution to others, which is what happens in the case of commercial research. If that is right, will the Minister tell us exactly where that leaves commercial research?
When we were discussing earlier amendments, he was asking why on earth commercial research should not be allowed without any hindrance, without the payment of any money and without it being a breach of copyright. I find the amendment slightly curious, and I have to pause before accepting it, because it appears to be saying that multiple copying is a breach of copyright and is not fair dealing. I find it difficult to put together the amendment and the position the Minister was adopting in the previous clause. That is why it is right to ask at least for an explanation.

Mr. Butcher: In the interests of making progress, I may have glossed over a point on which the hon. Gentleman wished to have clarification. I shall set his mind at rest. The amendment reflects a mutual concern. It seeks to define cases of multiple copying which are not regarded as fair dealing.
Clause 29 provides that fair dealing for purposes of research or private study does not constitute an infringement of copyright. Subsection (3) was included in the Bill to make it explicit that a student could avail

himself of the fair dealing exception even if he did not do the copying personally. We believe that to be the existing law but this statement on the face of the Bill caused some alarm, particularly among publishers. They were concerned that this could lead to systematic multiple copying—that is the key phrase—where a class of students could ask a librarian to make 30 copies of, say, a learned article and each would then rely on his own individual fair dealing exception.
As far as library copying is concerned, clause 40 already imposes restrictions on multiple copies of the same material, and subsection (4) was added to clause 29 so that those restrictions are read over to fair dealing. But, of course, librarians are not the only ones to copy on behalf of others. Copy shops do so. Industry does much in-house copying. Amendment No. 238 therefore extends the principle of clause 29(4) to the general case.
Since tabling amendment No. 238, we have had the benefit of seeing my hon. Friend's amendment (a), and in the light of this we have concluded that our original wording is rather too broad. There will be many occasions where someone copying a particular item will have reason to believe that someone else will also want a copy of it some time in the future. However, it should be possible to make a copy under this clause if there is no immediate prospect of further copying taking place. For that reason I am happy to accept my hon. Friend's amendment to my amendment.
This brings my amendment closely into line with the existing provisions in clause 40 governing multiple copying in libraries, and with the first part of amendment No. 311 in the names of hon. Gentlemen opposite. I cannot, however, accept the remainder of the wording of that amendment since the concept of systematic services for the making of copies is extremely broad and vague. It could well be that this provision would make the systematic supply of photocopiers an infringement of copyright and this would clearly be absurd.

Mr. Blair: I take the Minister's point about drafting, but it is not the drafting that concerns me. Perhaps if I put a specific case to him it may help elucidate the matter. If someone within a company's research department decided to photocopy a particular article and circulate it among 50, 100 or 1,000 people, would that be fair dealing or would that be excluded from fair dealing under the provisions?

Mr. Butcher: That is an example of the systematic and multiple copying which is not fair dealing.
In conclusion, I believe that my amendment, as amended by my hon. Friend, provides what is needed in this area. As a result of it, the hand of the copyright interests will be strengthened in negotiations for licences for copying which is not fair dealing. I hope that Opposition Members will not move their amendment 311 in the light of my remarks.

Mr. John Bowis: I beg to move amendment (a) to the proposed amendment, at end insert
'at substantially the same time and for substantially the same purpose.'
I am grateful for the opportunity to move amendment (a) and I am grateful to my hon. Friend for accepting it. It is slightly unusual to wait so long to speak in the debate and then to have one's amendment accepted. I am doubly grateful to my hon. Friend.
I have been seeking to strike a sensible balance between the interests of education and the interests of copyright ownership and to stop some of the abuses that appear to be possible. Multiple copying and systematic single copying have been referred to in that context. I had in mind to bring the academic world into line with librarians so that academic books that are not readily available from libraries could be copied for students. Without further debate or discussion I commend my amendment to the House.

Mr. Rowlands: We are a little unclear as to what the Government are doing in the amendments. We were somewhat relieved when the Minister promptly replied to my hon. Friend the Member for Sedgefield (Mr. Blair) saying that multiple copying inside a commercial concern is not fair dealing. That was a clear statement that we will happily bag and take away.
Amendment No. 238 refers to
A librarian, or a person acting on behalf of a librarian".
It then refers us to clauses 38 to 40. What is the Minister trying to do? Is he saying that if a librarian or a person acting on behalf of a librarian does multiple copying, he or she is breaching the fair dealing provision? I hope that we can obtain that clear statement from the Minister.
I want to know how this provision will be enforced. We went through all the problems when education authorities were involved. Eventually a court case arose and we moved to a licensing arrangement. The logic of much of what the Government amendments do would to be have some sort of licensing system sooner or later so that everybody knows exactly where they stand. We would like to know where we stand at the moment.

Mr. Butcher: The answer to the question asked by the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) is that librarians will infringe if they make multiple copies.

Mr. Blair: In the light of what the Minister has said, I am content not to move amendment No. 311.I am grateful to the Minister for the clear reply he gave in that in a commercial establishment, making multiple copies of a particular article or piece of material is not fair dealing and is an infringment of copyright.

Amendment (a) agreed to.

Amendment No 238, as amended, agreed to.

Clause 30

CRITICISM, REVIEW AND NEWS REPORTING

Amendmentproposed: No. 43, in page 13, line 25, leave out 'or' and insert
'does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.
(1A) Fair dealing with a work (other than a photograph)'.—[Mr. Butcher.]

Madam Deputy Speaker (Miss Betty Boothroyd): With this it will be convenient to consider amendment No. 8 in, page 13, line 26, after '(b)', insert
'with the exception of articistic works, for the purpose of reporting current events.'.

Mr. Blair: As I understand it—I wish to be clear about this—the Government amendment gives us exactly what we asked for in Committee. Members of the Committee will recall that there was great concern that the fair dealing

provisions as drafted meant that photographers lost copyright protection in circumstances where, for example, news and current events were reported. That was of tremendous concern to them. It was a right that they had held and they had always been in a particular position in relation to the use of photographs.
As I read Government amendment No. 43, photographs are specifically and expressly excluded from fair dealing. If I am right, there is no need for me to move amendment No. 8.

Mr. Butcher: The hon. Gentleman will remember the Committee exchanges on this matter. I prayed in aid the learned Lord Denning. The line of argument that I then deployed would have satisfied such distinguished lawyers as the aforesaid Lord when the matter was discussed in another place. I regret to say that it has not eased photographers' worries. They make the point that, even if we are right in our interpretation of clause 30, they should not be put to the trouble of having to argue the fairness of copying in court.
Given that we find it difficult to find examples of cases in which the exception could apply, we have concluded that we should not provide a current affairs exception for photographs. To retain clause 30 as it stands would be perfectly proper, but we are prepared to remove the widespread alarm that it has caused in the photographic community. I hope that Opposition Members do not consider it necessary to press their amendment, given amendment No. 43 standing in the name of my right hon. and learned Friend the Minister of Trade and Industry, which gives them what they and the photographers want.

Amendment agreed to.

Clause 32

THINGS DONE FOR PURPOSES OF INSTRUCTION OR EXAMINATION

Mr. Butcher: I beg to move amendment No. 44, in page 14, line 22, after ',hire', insert 'or'.

Madam Deputy Speaker: With this it will be convenient to take the following amendments: Government amendments Nos. 45 to 49.

No. 332, in clause 62, page 24, line 45, after 'hire', insert 'or'.

No. 333, in page 24, line 46, leave out 'or distributed'.

Government amendments Nos. 204, 205, and 137 to 140.

Mr. Butcher: Clauses 32, 35 and 36, and an order under clause 139, permit copies to be made within clearly defined limits for educational purposes to prevent abuse of the exceptions. Such copies are regarded as infringing copies when they are subsequently dealt with by being sold, for example. The definition of "subsequent dealing" includes distribution. That is not right, as it could prevent a teacher distributing copies to his pupils or an education authority distributing material to its schools. What is needed is to prevent subsequent sale or hire, and that is what our amendments will achieve.

Mr. Blair: We understand what the Government are doing. Having looked at the amendment, we consider that it is in accordance with what we wish.

Mr. Bowis: Amendments Nos. 332 and 333 are my amendments. Why do we not consider the whole series of amendments? When I raised the matter in Committee, my hon. Friend the Minister kindly said that he would examine the problem. In a subsequent letter, he said that he did not intend that
distribution by the teachers to pupils should be excluded.
He promised to table amendments, and here are the amendments. I am grateful to my hon. Friend.
Clause 62 omits the omission of the word distribution. I should be grateful if my hon. Friend would elaborate on that point. I appreciate that the matter in this clause may seem a little remote from education, but there are occasions when galleries, museums and so on have links with universities and the academic world. There could be a case for suggesting that such a provision should apply here. Am I right in thinking that a gallery, for example, that has works of art for sale could put on its door a poster, which is a copy of the prime work in the collection, but could not send prints in postcard form to sell the prime object to other people?

Mr. Butcher: My hon. Friend the Member for Battersea (Mr. Bowis) raised in Committee the matter of subsequent distribution of copies made under the various education exceptions in clauses 32 to 36. He was right to do so. He will have noted the amendments that we are making. However, I do not think that it would be right to make the same amendments to clause 62. If he wishes to tease the arguments from us on this occasion, I shall be happy to discharge an obligation to provide a rationale.
The purpose of clause 62 is to allow those selling an artistic work to copy it and to issue copies to the public for the purpose of advertising the sale without infringing copyright. Auctioneers, art dealers and others engaged in selling works of art want to be in a positon to include a reproduction of a work in catalogues advertising an auction or sale. That is a long-standing practice, but it may be an infringement of copyright under existing law.
Subsection (1) allows the production and distribution of catalogues and so on for the purposes of advertising a sale, but subsection (2) ensures that subsequent dealing in copies made for such a purpose is an infringement. This is to protect the interests of the artists involved. Thus, a work may be included in a catalogue to advertise a sale but such catalogues cannot subsequently be sold as art books unless the copyright owner has consented. Nor should they be distributed for any purpose other than that for which clause 62 is intended, which is advertising the sale of artistic works. Any exception to copyright should not be wider than needed to achieve its purpose, which in this instance is sale of artistic works, and the amendment of my hon. Friend the Member for Battersea would have that effect. Accordingly, I hope that he will be sympathetic to my request that he does not press it further.

Mr. Bowis: I wished only to test the water. I happily accept my hon. Friend's reassurances.

Amendment agreed to.

Amendment made: No. 45, in page 14, line 23, leave out 'or distributed'.—[Mr. Butcher.]

Clause 35

RECORDING BY EDUCATIONAL ESTABLISHMENTS OF BROADCASTS AND CABLE PROGRAMMES

Amendments made: No. 46, in page 15, line 29, after ', hire', insert 'or'.

No. 47, in page 15, line 30, leave out 'or distributed'.—[Mr. Butcher.]

Clause 36

REPROGRAPHIC COPYING BY EDUCATIONAL ESTABLISHMENTS OF PASSAGES FROM PUBLISHED WORKS

Amendments made: No. 48, in page 16, line 5, after ', hire' insert 'or'.

No. 49, in page 16, line 6, leave out 'or distributed'.—[Mr. Butcher.]

Clause 50

ACTS DONE UNDER STATUTORY AUTHORITY

Mr. Butcher: I beg to move amendment No. 50, in page 20, line 43, at end insert—
'(3) Nothing in this section shall be construed as excluding any defence of statutory authority otherwise available under or by virtue of any enactment.'.

Madam Deputy Speaker: With this it will be convenient to discuss Government amendment No. 141.

Mr. Butcher: The amendment will ensure that a defendant is not debarred from pleading a statutory authority for an act which infringes copyright merely because there is no specific provision in an Act of Parliament. It will be, as under the present law, a matter of construction of the statutory provision in question.
On about half of the occasions when I have moved an amendment formally, my purpose has been to comply with a request from the Opposition.

Amendment agreed to.

Clause 54

USE OF TYPEFACE IN ORDINARY COURSE OF PRINTING

Amendments made: No. 164, in page 22, line 27, leave out from '99' to end of line and insert
'(order for delivery up and right of seizure)'.

No. 165, in page 22, line 29, leave out 'forfeiture of such an article' and insert 'order for delivery up'.—[Mr. Butcher.]

Clause 56

INCIDENTAL COPYING IN COURSE OF USE OF WORK IN ELECTRONIC FORM

Amendment made: No. 163, in page 23, line 2, leave out Clause 56.—[Mr. Butcher.]

Clause 59

PUBLIC READING OR RECITATION

Mr. Butcher: I beg to move amendment No. 51, in page 24, line 13, leave out subsection (2) and insert—
'(2) Copyright in a work is not infringed by the making of a sound recording, or the broadcasting or inclusion in a cable programme service, of a reading or recitation which by virtue


of subsection (1) does not infringe copyright in the work, provided that the recording, broadcast or cable programme consists mainly of material in relation to which it is necessary to rely on that subsection.'.
The amendment is our response to the arguments of the hon. Member for Caenarfon (Mr. Wigley) in Committee. It ensures that those who record or broadcast live events, such as eisteddfodau, will not find themselves infringing copyright when unforeseeably—it is often unforeseeably—a speaker recites an extract from a literary or dramatic work without the consent of the copyright owner, placing reliance on clause 59. I am happy to give the hon. Gentleman credit for the amendment, which he richly deserves.

Mr. Wigley: I thank the Minister for responding to the arguments that I advanced in Committee. I am not sure whether the broadcasting authorities in Wales, the governors of the three channels and those involved in the organisation of eisteddfodau fully understood the implications of the Bill when it first appeared in print. When they read the report of our proceedings in Committee, there was apoplexy.
The House will know—the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) will certainly be aware of this—that BBC Wales, S4C and HTV are much dependent on their capability to broadcast on radio and television the Eisteddfod Genwedlaethol Cymru—the National Eisteddfod of Wales—which will be held next week at Newport. Were they not able to broadcast without being in danger of breaching copyright, they would be extremely concerned. The same applies with Eisteddfod Genwedlaethol Urdd Gobaith Cymru—the Welsh League of Youth eisteddfod—which took place in Merthyr Tydfil last year. The hon. Member for Merthyr Tydfil and Rhymney and his wife Janice, worked extremely hard for its success. That, too, would have been in trouble had it not been for the amendment. The same goes for the international eisteddfod. For all these reasons, I welcome the amendment. I congratulate the Minister on his change of post and say that, following the amendment, there will still be a welcome for him at Aberdaron this summer.

Amendment agreed to.

Clause 60

ABSTRACTS OF SCIENTIFIC OR TECHNICAL ARTICLES

11 pm

Mr. Fisher: I beg to move amendment No. 318, in page 24, line 16, leave out clause 60.

Madam Deputy Speaker: With this it will be convenient to discuss amendment No. 331, in page 24, line 18, after 'abstract', insert 'or its typographical arrangement'.

Mr. Fisher: The purpose of amendment No. 318 is to delete clause 60, in particular its provision for the republication of abstracts by, in effect, a form of compulsory licensing, which is referred to in clause 141(1)(b).
The amendment raises a point that is different from those that we have been making about copying, but none the less it is important. Abstracts are copyright works of much value, especially to academics and researchers. As we understand it, clause 60 will allow not only copying of abstracts but their republication. That would be in contravention of the Berne convention. Surely authors

should at least have the right to preserve their copyrights without the arm-twisting that clause 60 appears to impose on them. Some publishers of abstracts will not wish to have such valuable material republished or copied by others, but clause 60(2) may force them to comply under the certifiable schemes referred to in clause 141(l)(b).
Clause 60 is an undesirable provision, and throws the problems of copying far too wide. We hope that the Government will withdraw the clause.

Mr. Bowis: I should like my hon. Friend the Minister to elucidate a couple of points regarding facsimile copies of abstracts.
Although abstracts of articles in the humanities are less common than in the sciences, will my hon. Friend explain why the humanities have been excluded? Should not reference have been made to academic as well as scientific work?
The fastest way to publish abstracts is reprographically, but under clause 8(1) that would seem to be a breach of the copyright of the typographical arrangement. Clause 8(2) relates to reproduction of the same work. I doubt whether that is what was intended, but I should be grateful for my hon. Friend's elucidation.

Mr. Butcher: Clause 60, which amendment No. 318 seeks to remove from the Bill, is an exception to the rights of copyright owners, which I moved in Committee. I did so because, after full investigation of the matter, the Government believe that it provides a valuable safeguard for the continued operation of abstracting services, which play an essential role in the dissemination of scientific and technical information.
As I explained in Committee, the scientific and technical communities are served by a number of abstracting services. Some of them are purely commercial, such as Derwent Publications, and others are offshoots of learned societies, such as the Institution of Electrical Engineers. They scan periodicals from around the world and write or reproduce abstracts of articles of scientific or technical interest. They will normally apply a classification system to the abstracts, so that their clients can readily find those of particular interest to them.
All that is carried out under the present law, which, in our view, does not allow the republication of abstracts in the absence of authorisation by the copyright owner. We understand that, where authorisation is sought from publishers, it is normally given—usually without any request for payment. However, we also understand that in many cases consent is not sought, for practical or other reasons. In that event, the republication is an infringement of copyright.
Clearly, abstracting services are highly valued by the scientific and technical communities, and it is unsatisfactory that they should be carrying out their activities on a legally uncertain footing. The easy way of meeting their worries would have been simply to provide an exception to copyright, allowing republication of this kind. We resisted an amendment to this effect in another place, but said that we would consider alternative ways of meeting the problem, in consultation with publishing interests.
This clause is the outcome. I acknowledge that it has caused some concern to the Publishers Association and the Periodical Publishers Association Ltd. We have, however, taken account of the commercial interests of publishers by providing that the exception in subsection (1), allowing


republication of abstracts, will be overridden if there is a licensing scheme. Consequently, authors and publishers will have the opportunity to obtain remuneration from this secondary use of abstracts if they wish. Conversely, they will be relieved of the burden of having to respond to individual requests for permission to republish abstracts.
I should add that we have consulted the Association of Learned and Professional Society Publishers, whose journals and periodicals are among those most likely to be affected, and it is content to see an exception of this sort.
Amendment No. 331 would extend the exception even further. It would allow the abstracting service not merely to copy the original abstract word for word, but also to copy the original publisher's typography, which would be going too far. Abstracting services are themselves publishers and should be prepared to do their own typesetting. The scientific community needs the information, but it does not need to have it presented in a particular typeface or layout. There is no need to reduce the original publisher's rights any further.
For the reasons I have given, I must resist both these amendments and I hope that they will not be pressed.

Mr. Fisher: The Minister said that these abstracts are valued. Will he also confirm that they are valuable and that there is considerable commercial advantage and potential in these abstracts? If he does accept that, and that is the case, is it not bizarre that this uniquely should be ignored in a clause contained in a Bill which seeks to protect people's economic copyright?

Mr. Butcher: We have debated this at some length, and I have not found an argument to considerably change our view on this. The hon. Gentleman has asked me to come back on a point, so I shall use the opportunity to reply to the question of my hon. Friend the Member for Battersea (Mr. Bowis). He asked why the humanities were excluded, and the answer lies in the remark that I made earlier—that the exceptions should be no wider than necessary. The only case put to us that needed action related to science and technology.

Amendment negatived.

Clause 61

REPRESENTATIONS OF CERTAIN ARTISTIC WORKS ON PUBLIC DISPLAY

Amendment proposed: No. 52, in page 24, line 34, leave out 'showing,'.—[Mr. Butcher.]

Mr. Martlew: The Committee was replete with my pedantic legal interventions, but tonight we have been free of them until now. The amendment deletes the word "showing", and it appears from clause 61, as it now stands, that it is not an infringement of copyright to make a graphic work. Does the deletion of the word "showing" not suggest that it may be an infringement to show the results of that graphic work or photograph? Will the Minister explain why that word requires to be deleted?

Mr. Butcher: The exhibition of an artistic work is not a restricted act either under existing law or under the Bill. That means that the showing of a film, including an artistic

work, cannot infringe the copyright in the artistic work. The word "showing" is therefore not needed in clause 61(3).

Amendment agreed to.

Clause 65

HIRING OR COPYING OF SOUND RECORDINGS, FILMS AND COMPUTER PROGRAMS

Amendments made: No. 53, in page 25, line 12, leave out 'hiring' and insert 'rental'.

No. 54, in page 25, line 14, after 'royalty', insert 'or other payment'.—[Mr. Maude.]

Mr. Fisher: I beg to move amendment No. 315, in page 25, line 14, at end insert—
'to the copyright owner and to owners of the copyright in works included in such recordings, films or computer programs'.
This is a simply addition to the Bill. It would protect the copyright of works included in copyright works in hire arrangements. We are not certain whether the Government have inadvertently omitted to mention the copyright of works in existing copyright works or whether they have been omitted deliberately. We believe that they should be included.

Mr. Maude: They are certainly not omitted by inadvertence. We debated this matter at some length in Committee. The recollection of that debate may be warmer with some of us than with others.
The amendment is an attempt to ensure that authors and composers are remunerated when records, films and computer programs are rented out under a statutory licence. We do not believe that the amendment, with which we have some sympathy, as the hon. Gentleman will probably remember from our debate in Committee, will be workable, so I ask the House to resist it.

Amendment negatived.

Amendments made: No. 55, in page 25, line 22, leave out 'hired' and insert 'rented'.

No. 56, in page 25, line 22, leave out 'hirer' and insert 'renter'.

No. 57, in page 25, line 22, leave out 'hiring' and insert 'rental'.—[Mr. Maude.]

Mr. Maude: I beg to move amendment No. 58, in page 25, line 26, leave out subsections (5) to (7).

Madam Deputy Speaker: With this it will be convenient to take the following amendments: No. 230, in page 25, line 28, after 'works', insert 'or films'.

No. 231, in page 25, line 35, after 'works', insert 'or films'.

No. 232, in page 25, line 38, at end insert 'or films'.

Mr. Maude: When I spoke in the Committee debate on the blank tape levy, it was at about this time of night. The difference is that that was the closing speech in the debate; the slightly depressing thing is that this is the opening speech in this debate. In deference to the hour and the great familiarity of hon. Members in the Chamber with the arguments, I shall be brisk in describing the Government's stance.
The perceived problem is that thousands of people make copies of music from records and the radio in infringement of copyright. Since these infringements take place in the privacy of the home, the copyright owner


cannot enforce his copyright. He cannot get remuneration for the use of his works and so, it is said, the answer is to put a levy on recording tape and/or recording equipment.

Mr. Page: My hon. Friend said that thousands of people make copies. Will he amend that to "millions of people", and get it accurate?

Mr. Maude: I am prepared to admit almost anything. I am prepared to make that trifling correction.
The money from such a levy would be distributed to copyright owners and, in return, the public would be licensed to make recordings for their private and domestic use. As will no doubt be said during the debate, the Government's view has gone first one way and then the other, but we have had to reach final conclusions and tonight the House must do the same. The Government's conclusion is that a levy should not be introduced, and I ask the House to endorse that conclusion.
Amendment No. 58 would remove three subsections which were added in Committee. The intention behind them was, as I understand it, not to require the introduction of a levy but to leave the door open for the Secretary of State to introduce a levy if he saw fit.

Mr. Jeremy Hanley: I am grateful to my hon. Friend for his candour in admitting that the Government have moved one way and then the other. However, it is difficult for someone such as myself who is so keen on this issue that I spoke in the House on it at half-past seven in the morning of 18 December 1985, and on three subsequent occasions. Each time I was assured that the levy on blank tapes was being carefully considered and then I was told that it had been accepted through the White Paper.
Therefore, perhaps my hon. Friend can tell us what thought processes occurred to force the Government to change their mind and what consultations were carried out between the general election, when every Tory candidate fought in support of this issue, and when the Secretary of State made his decision. Did the Government consult the British phonographic industry or the music industry before changing their mind?

Mr. Maude: If I may proceed a little with my speech, the thought processes may become a little clearer. It is clear that the Government did not suddenly wake up one morning and decide to change their mind. If ever any Bill was consulted upon, this is it. The Bill has been subjected to the most enormous consultation and there have been enormous lobbies on both sides. I do not think that anyone could seriously suggest that the blank tape levy is not a matter on which there has been a great deal of consultation because there certainly has been throughout the history of the debate.

Mr. Hanley: I am grateful to my hon. Friend for giving way again. I asked him what consultations with the music industry had taken place between the general election and the announcement of the change of policy.

Mr. Maude: I cannot give my hon. Friend a specific answer on that matter at the moment. However, the Department was well aware of the views of all those concerned. We have been consulting all those concerned

with this matter over a long period and, as I said at the outset, the arguments are clear and are well understood by all concerned.
The amendments which are grouped with Government amendment No. 58 are, I presume, intended to open up the possibility of a levy on videos as well as one on audio tape. Subsections (5) to (7), which were added in Committee, are technically defective in several respects, not least in that they do not allow the introduction of a licensing scheme in respect of literary works forming the lyrics of songs. If my hon. Friend's amendments were accepted, any video levy would license only the recording of silent movies.
As I said in Committee, we have not the slightest intention of seeking to use the powers with which the Committee endowed us. If, in the distant future, a Secretary of State were minded to use those provisions, he would find them unusable for their intended purpose. The only consequence of failure to accept my amendment No. 58 would be to leave an unwanted and unworkable power in the Bill.
In terms of strict law, it was unnecessary for us to table this amendment. We could have accepted the amendments made in Committee, content in the knowledge that they make no difference, but that would have been disingenuous. We do not want a levy, nor, I believe, do the majority of hon. Members. In the circumstance, we should remove from the Bill any suggestion that this House favours the levy solution.
I have no new arguments to advance tonight. They have all been aired before. It is wrong in principle for the private rights of a few to be enforced by means of a general tax, which hits innocent and guilty alike. That is especially so when the beneficiaries of such a levy would be the relatively well-to-do record companies and pop stars; and those who would pay include the visually handicapped, those with impaired hearing the churches, younger consumers—not a cast list of the rich and famous. It may be that there are poor composers—I hear it said many earn less than £5,000 per year from performances of their work—but let us not delude ourselves. A copyright levy would not benefit them; the money would go to swell the coffers of the composers who already make large sums. It is successful and popular music which is copied most and which would receive the lion's share of any levy. Much would flow overseas, especially to the United States of America, without any corresponding return to United Kingdom composers.

Mr. Wilson: Does the hon. Gentleman agree that his list of categories containing people that he says would be unfairly penalised under a levy coincides remarkably with groups of people who will lose under the poll tax? It is disingenuous in the extreme to come to the House this week to plead for a few pennies for the blind and disabled when only a week ago the Government bludgeoned out of existence every amendment that favoured the disabled and involved infinitely greater sums of money than this.

Mr. Maude: That is not the best point that the hon. Gentleman could have raised. It was a fairly poor one. The list that I read to the House contained people who are particularly heavy users of blank tape. It seems wrong that they should be asked to pay a special levy on something that they use for perfectly innocent purposes, in order to provide extra money for an industry that is already doing rather well.
All hon. Members who spoke in Committee in favour of a levy said quite properly that their support for this proposal depended on acceptable arrangements being found for innocent users, especially blind people. An acceptable relief scheme for blind people is a pipe dream. After we published the White Paper in 1986, we explored every possibility and could not find a way to satisfy the Royal National Institute for the Blind. Hon. Members cannot say that they favour a levy but that, of course, the blind must be looked after. Those are mutually exclusive propositions. Those who favour a levy must do so in the full recognition that blind people will be prejudiced. I do not want to spend a long time going through all the arguments again.

Mr. Toby Jessel: My hon. Friend is speaking at some length about the blind. Of course everybody cares about blind people and wants to support them. One person in 300 is registered as visually handicapped and on average, people buy eight blank tapes per year. A levy of 10p per tape would come to 80p a year. If a blind person bought twice as many it would come to £1·60 a year. That is 3p a week. Does my hon. Friend seriously believe that blind people who derive a great deal of enjoyment from listening would resent paying 3p a week to musicians, composers and actors who entertain them? Is my hon. Friend not employing a rather small argument to try to defeat the proposal?

Mr. Maude: The argument is put in perfectly good faith by many organisations that represent blind people. I do not think that the RNIB is filled with any sort of animus against copyright owners. It is an organisation of good will doing charitable work for the good of the blind people that it represents. For my hon. Friend to write this off as a trifling argument and to say that people can perfectly well afford such a levy will not do.
Members of the Committee who advanced the argument for a blank tape levy were perfectly straightforward about it. They said that no scheme should be introduced unless a relief scheme for blind people could be introduced. In good faith the Government have explored all the possibilities for devising such a scheme. It cannot be done.

Miss Emma Nicholson: Does my hon. Friend the Member for Twickenham (Mr. Jessel) know that only one in three of all people with visual handicaps are registered, and a smaller percentage of those people with aural handicaps are registered? The Minister has, perhaps, not spoken about those with handicaps quite as forcefully as he has spoken about the blind. I have here a letter from the chief executive of the Royal National Institute for the Deaf and it clearly makes the point on behalf of both problem areas. It says:
The RNID fully recognises the rights of copyright owners to protect their interests, but does not believe that a workable levy system including exemptions and rebates for deaf people has been found. Accordingly we are most concerned that should the power in the Bill be used it would penalise deaf people for using a most valuable resource.
My hon. Friend the Member for Twickenham (Mr. Jessel) said that blind people bought only eight tapes a year. He completely omitted to mention the talking newspapers, from which many hon. Members have had

letters; I have copies of all those letters, of which there were 400 or 500 in the last three weeks. Even the small talking newspapers regularly use about 400 tapes a week.

Mr. Maude: My hon. Friend makes a vivid point. I know that the House will accept the argument that she advances on behalf of aurally handicapped people, and I am grateful to her for making her point so powerfully.
The arguments have been fully exposed. The fashion for a levy solution has now passed. It is worth noting that in its recent Green Paper the European Commission did not build on the levies in France and West Germany to propose a Communitywide system, as some had expected it to; it did quite the reverse.
People are beginning to realise that levies are not the solution. We should perhaps even begin to question whether there is a problem that needs a solution. The countries with the most buoyant music and record industries—the United States, the United Kingdom and Japan—have survived private copying without a levy, and it now seems that Europe, too, is to turn away from a levy. I invite the House to do the same.

Mr. Page: Amendments Nos. 230, 231 and 232, standing in my name and that of my hon. Friend the Member for Battersea (Mr. Bowis), provide a simple solution to the Government's difficulty. The Government have introduced the Bill for a variety of reasons, but one of the major reasons must be related to the advances that have been made in new technology. Without those advances, the Bill would be a considerably slimmer volume than it is and we should almost certainly not be discussing a blank tape levy, as it would be quite difficult to reproduce plastic or bakelite discs.
New technologies have brought advances principally in the handling and dissemination of information—from computers through new printing and reproduction techniques to laser discs, satellites and cables. Those new methods of storing, accessing and spreading information increase its value, but the same technology has made illicit copying that much easier. To take a classic example, educational software never got off the ground because of the ease of making illicit copies. Illicit copies have destroyed the very investment that makes progress possible.
I say that in reply to those who argue, "Home taping does no harm; the record companies are wealthy enough anyway and can afford to forgo whatever revenue might come their way because of the levy." My hon. Friend the Minister made virtually the same point. I have never believed that one strengthens the weak by weakening the strong, and I do not believe that we shall help the music industry by asking it to forgo what rightfully belongs to it.
Our debate tonight is not just about money; it is about principles of right and wrong. The loss of sales to British products through illicit copying and breaches of copyright runs into hundreds of millions of pounds. It is impossible to estimate the exact sum but there are figures to suggest that it is in excess of £500 million. No economy in the world would happily forgo that amount of revenue.
Not only is the overall loss of sales through illicit reproductions virtually incalculable; the creators of original work see their ideas being lost through copying. They also see the sheer difficulties of enforcement. I hope


that it is those difficulties that lie at the heart of the levy argument. I hope that that, rather than the question of legalising home taping, is at the front of our minds.

Mr. Tim Devlin: Surely the Government's best argument relates to the proportion of a levy that would go to the artist or the original producer of the work. Can my hon. Friend tell us how much of the levy would go to the artist? My experience of the record industry tells me that the bulk of the levy would go to a record company that had bought the copyright from the artist at a knockdown price when he was a young man.

Mr. Page: My hon. Friend the Member for Stockton, South (Mr. Devlin) did not have the privilege or the opportunity of attending the Committee, but that matter was fully debated then. Whether we like it or not, copyright is invested in whoever has purchased it and in the particular case cited by my hon. Friend it lies with the record company. The strength of the contract between the artist or composer and the record company is another matter. If they become famous enough they may write into their contracts that they should get an advantage from the revenue derived from the levy, but it is up to them.
I do not apologise for my preamble. Tonight the Government have failed to solve the question of copyright on time shift, and they will shortly make exactly the same mistake with audio taping. For some reason the Government, or rather one or two Ministers, have tied themselves to the rails as the express is thundering towards them—just like the "Boys' Own" stories. There is an alternative, but even after the Green and White Papers and the manifestoes, the Government refuse to take that alternative course of action.
I accept what the Minister said about the amendment passed in Committee. I accept that it was not up to strength and that it would not have stood up to scrutiny and the test of operation. In Committee we made that same point. We said that the amendment was being used as an example to test the strength of opinion for blank taping. We accepted that it was not pure milk as regards the introduction of a blank tape levy. However, if the amendment had been cleaned up a little, it would have given enabling power to the Minister, had that power been required at a later date. The Government can still untie themselves from the rails, but I do not believe that the will is there.
Some people may wonder at all the fuss about a "little private copying". One instance of private copying may not be much, but regular home taping is widespread and hits the record, film and video industries. The Minister said that thousands of people are involved, but as he knows from my earlier intervention, we are dealing not with thousands but with millions of people. The problem will get worse as new forms of recording equipment become available.
I know that great store is set by the introduction of spoilers and that it is believed that they will block the reproduction of digital audio tapes when those tapes become more generally available and attractively priced. I have some experience in the security industry, and I know that for every lock there is a key. For spoilers that key is already available: it is called an enhancer. There may be a proposal to make such enhancers illegal, but making things illegal has never stopped them being used. To

anyone connected with the production of pre-recorded tapes, the most fair and workable solution is a royalty or levy system. Although such a system would mean revenue to the companies involved, I also believe that it would signify a return to moral standards.
The Government have done a magnificent job in pioneering a return to a revived economy. Most of the economic indicators show that things are on the way up and the economy is looking more promising than it has done for years. Although that economic success is still too short-lived to be taken for granted, it needs to be reinforced by a social and cultural revolution.
I shall resist talking about family values and the reinforcement of traditional values, but I believe that it is wrong for the Government to walk away from introducing and supporting the principle of copyright. Technological changes will constantly require control and the guidance of law. That has happened in medicine, and the law will be changed with regard to embryo experimentation. In the same way, by rejecting the amendment, the Government are abandoning the principle of copyright. I do not want to labour the obvious—

Mr. Andrew F. Bennett: If the hon. Gentleman is so concerned about what is morally right, will he tell us what is morally right about imposing a levy on people who use blank tapes in a perfectly legal way and never copy material that they should not copy? Surely it is wholly unfair to penalise people who obey the law, as opposed to those who break it?

Mr. Page: The hon. Gentleman has a point. A degree of rough justice is involved in this. I accept that some will be caught in the trap that he has described. With the exception made for people who are visually handicapped and with the proviso that tapes of under 35 minutes length would be exempt, I suggest that very few—perhaps no—users would be thus caught. If they want to avoid this levy—incidentally, it has been absorbed by every tape producer in the countries in which it has been introduced —all they have to do is make sure that they buy tapes less than 35 minutes long—

Mr. Bennett: Does the hon. Gentleman accept that an oral historian, for instance, would use a large amount of tape? Often such historians are not well funded and the cost of buying tapes of their work is high. They do not want to keep changing tapes for less than 35 minutes length when interviewing people for oral history projects. They want tapes that are as long as possible.

Mr. Page: As I said, there is an element of rough justice. If a vast number of tapes are being bought for educational purposes, I see no difficulty about arranging some sort of exemption for genuine use.
We come back to blank tapes and the principle of copyright. The whole purpose of the Bill is to enshrine in legislation a protection for ingenuity and creativity, which constitute two of the great advantages of this nation. Turning a blind eye to the issue shows a lack of moral leadership.

Mr. Devlin: Would my hon. Friend be in favour of imposing a levy on blank paper for photocopying machines? The principle is the same.

Mr. Page: When my hon. Friend reflects on that intervention, he may wish he had never made it.
The House will not be surprised to hear that I do not accept the permissive argument that home taping should be allowed free, gratis and for nothing. A certain body of opinion advocates that line of action, but it breaches the principle of copyright. It becomes almost impossible to know where to draw the line. Will a home owner be allowed an extra copy for his car? Will the standard family with 2·4 children have one or two more copies for the Walkman? If a relative drops in and likes the music that is on, will he be allowed a copy, too? The only safe position is to adhere to the principle of copyright.
The debate about the legality of home taping in Committee was instructive, if nothing else. My hon. Friend the Minister tackled the matter by saying:
If the Committee decide … that it should remain a criminal act to copy copyright audio works, stringent action by the industry could have a salutary effect.
He went on to say:
there are private rights which are enforceable in the courts. They are not enforced at present, and there is scope for that practice to be enhanced."—[Official Report, Standing Committee E, 24 May 1988; c. 336.]
That was interesting. How did my hon. Friend envisage enforcing the time shift proposal on the 28-day limit?
The Government's decision to alter that proposal because it was unenforceable provides the answer to my hon. Friend's question. He almost admitted it later in Committee, when he prayed in aid the judgment of Lord Templeman in the Amstrad case—a judgment which most Committee members quoted at one time or another in support of their arguments. The judgment said:
A law which is treated with such contempt should be amended or repealed.
That point was also made in the 1986 White Paper.
My hon. Friend the Minister tried to justify the Government's changed stance on the levy, at which point the debate became interesting. He said:
We have seriously considered such a scheme. I did not simply study it for a few minutes before I began my speech or talked to a couple of people."—[Official Report, Standing Committee E; 24 May 1988, c. 340.]
That was a Freudian slip, because I reckon that a couple of people spoke to him, and those two people had decided that it would not work.
The blank tape levy has created more confusion than any other subject. The Conservative manifesto stated:
As part of a major reform in the law of copyright home taping will be legalised in exchange for a 10 per cent. levy on blank audio tapes. Organisations and their members who use tapes without breaching copyright, ie blind people, will be able to claim a full rebate.
Is my hon. Friend saying, as he seems to be implying tonight, that the Government went into the election knowing that they did not have a proper agreed rebate system for blind people? The briefing notes sent out by Conservative Central Office said that special provision would be made for the blind, as well as organisations and individuals who do not infringe copyright. Perhaps that answers the question asked by the hon. Member for Denton and Reddish (Mr. Bennett). I was asked two similar questions, one at the public meeting. Safe with the manifesto and the speaking notes in front of me, I replied, "Yes, we shall introduce a blank tape levy."
I can only assume that, until election day, the blank tape levy was policy—with the provisos to help the visually handicapped, and exemptions for tapes with a short running time. But within a few weeks of the election, in a

puff of smoke and a flash of light, the proposal disappeared. I want to know from my hon. Friend what happened. I echo the words of my hon. Friend the Member for Richmond and Barnes (Mr. Hanley), who asked what had happened since the election to reverse the policy contained in the Green Paper, the White Paper and the manifesto.
The temptation to run through the history of the matter and to list all the committees that have been formed is almost irresistable, but in deference to those who wish to speak I shall resist it. It is a few years since I felt moved enough to vote against the Government. The previous occasion was in 1980, when I voted against them on the employment legislation, and the next year, under a three-line whip, the Government exhorted me to vote for the very proposal that they had tried to block the year before.
The amendment in the names of my hon. Friends the Members for Battersea (Mr. Bowis) and for Beaconsfield (Mr. Smith) provides a solution to the video and audio tape problem. It reinforces copyright. I do not understand why the Government do not embrace the ideas in the Green Paper, the White Paper and the manifesto. Even at this last moment, I urge my hon. Friend to think again.

Mr. Blair: The blank tape levy, or royalty, was discussed fully in Committee. I do not pretend, and I have never pretended, that this is an easy judgment to make. It is not. But in an imperfect world we should adopt not the perfect solution, because there is rarely one, but the best solution that can be found.
No hon. Member has suggested either on Second Reading, or in Committee or today that home taping is not practised on a considerable scale and that in the main it is illegal. At the very least, the House has a duty either to make it legal or to provide a proper means of enforcing the remedies against illegality.
The hon. Member for Hertfordshire, South-West (Mr. Page) referred to the Amstrad judgment. What was remarkable about that judgment was its unanimity about the desirability of removing an unenforceable law. In his speech Lord Templeman said:
From the point of view of society the present position is lamentable. Millions of breaches of the law must be committed by home copiers every year.
He ended the paragraph by saying:
A law which is treated with such contempt should be amended or repealed.
The Government have introduced proposals not to amend or repeal the law but to leave it in an inherently unsatisfactory state.
The solution to home taping in other countries is a royalty on blank tapes. That solution has been adopted all over Europe, most recently in Spain. It is being operated in West Germany and France. While the Bill was being debated in Committee the Australian Government announced that they intended to introduce a blank tape levy. It could not therefore be said that it would be odd for this country to adopt such a solution. A royalty on blank tapes has been introduced elsewhere, even though the record industries in those countries are far less important than our own.

Mr. Devlin: How much of the levy in West Germany goes to the composers?

Mr. Blair: About 60 per cent. I shall turn in a moment to the question of how much of the levy goes to the rich composers and how much of it goes to poorer composers.
The rest of Europe is moving sensibly towards the introduction of a blank tape levy while the scale of the problem in this country is growing. Many more blank tapes are sold every year than pre-recorded cassettes. Probably two thirds of those tapes, or even more, are used to make illicit copies. Unlawfulness on that scale puts into the context the arguments against the blank tape levy.
Another argument is that all the money will go to the very rich, to the Michael Jacksons of this world, not to poorer composrs and song writers. The best judges of the interests of poorer composers and song writers are the bodies that represent those people. Their view is unanimous: that the poorer composers and song writers will secure a significant part of that levy. A limit is placed in West Germany on the amount that any song writer can receive. That is a means of distributing the money raised by the levy. It would be bizarre if we were to say that poorer composers and song writers in this country are in a different position.
The second objection that is made to the blank tape levy concerns the blind, the disabled and other groups. All hon. Members quite rightly take seriously any representations made on behalf of blind, deaf or otherwise disabled people. However, my view is that for the Government, this has become something of a shroud behind which they hide what has been essentially a political and tactical decision, taken for other reasons. I say that because we have made it absolutely clear throughout that we believe that proper exemption schemes should and could be found for such groups. That is why the amendment we tabled in Committee gave the Government a power to introduce the levy scheme. It did not even go as far as some wanted, and impose an immediate obligation on them to do so. That is because the problems of the blind, the disabled, and indeed the oral historians to whom my hon. Friend the Member for Denton and Reddish (Mr. Bennett) referred, require proper schemes to be found.
At present, a scheme to the satisfaction of the blind, the deaf and the disabled has not yet been found. However, copyright Bills come before the House once every 30 years. Surely it is not unreasonable, given the trend of events elsewhere, to say that at least a power should be on the statute book so that negotiations can be held, hopefully leading to a satisfactory conclusion.

Miss Emma Nicholson: I am most grateful to the hon. Gentleman for giving way. Perhaps he can explain why two years of solid negotiations with the blind and deaf organisations, with the Government heavily committed in print to a blank tape levy, have wholly failed to come up with anything that will satisfy those organisations. Will he also explain how on earth he expects a blind person to become other than more dependent, given that any exemption scheme will rely on paperwork, and a blind person will have to find a sighted person to help fill in the form?

Mr. Blair: I do not think that all exemptions schemes necessarily depend on that. Indeed, West Germany provides an interesting analogy. In West Germany, the royalty has been subsumed into the cost of the tape so the price of a blank tape has not risen at all. In any event,

paperwork is not the only way of providing an exemption scheme. It could be provided through the allowances paid to blind and disabled people.
I appreciate that the blind, the disabled and the lobbies associated with those groups will oppose any notion of a blank tape royalty or levy, but ultimately, we have to weigh that objection and consider how serious it is—given the commitment to finding a decent exemption scheme—against the interests of those who are having their copyright transgressed and who, if we leave the law as it is, will continue to have it transgressed without any comeback whatsoever. I find that wholly unsatisfactory.

Miss Emma Nicholson: I am most grateful to the hon. Gentleman and I shall not ask him to give way again. I recognise his genuine concern and commitment to making a blank tape levy work for the blind and the deaf, as well as for composers. But can I not get it over to him and to other hon. Members that the majority of those who are blind or deaf are not known as such to society? They are not registered, and they are not members of voluntary organisations. They are invisible because they prefer to be treated as normal and we shall not be able to find them.

Mr. Blair: Those problems are exactly the problems that have been addressed by other legal systems and other Administrations in other countries and they have been overcome.
It is also important to stress that we must be careful not to exaggerate just how much difference the levy or royalty will make. Listening to some of the comments made outside, it seems as if blind people will be prevented from buying tapes following the passage of a royalty levy. That is simply not the case.
It is important to retain a sense of perspective. I do not believe that we could not find a workable exemption that would be acceptable to all parties. If a proper exemption scheme cannot be found, a levy should not be introduced. We have made that clear throughout. That is why we have said that a power should be given to the Government rather than an obligation.

Mr. Andrew F. Bennett: Does my hon. Friend agree that there should be an exemption, not just for the blind and disabled, but for at least all educational users so that the oral historian I mentioned earlier as well as anthropologists, folklorists and others who use tapes in large quantities should not have to pay the levy? Will my hon. Friend also look at the problems for schools? In the new GCSE examination a large amount of work from pupils has to be recorded for moderation purposes. Those are all cases for exemption. However, if there are exemptions will there not be two prices for tapes? If one is not careful, there will be as many infringements by people moving from a legitimate exemption to an illegitimate exemption.

Mr. Blair: Obviously we have to be careful. It would be absurd to have two different prices for tapes. The Australian Government, who a few weeks ago introduced their own proposals for a blank tape royalty, included specific exemptions for educational institutions.
If one put all the exemptions together, they would make up a fraction of the problem of illicit home taping. About 50 million to 60 million blank tapes every year are used for illicit home taping. Therefore, it is important to retain a. sense of perspective when talking about the necessary exemptions.
We believe that the rights of copyright owners are important and it is virtually beyond doubt that they are being infringed on a large scale. We do not say that the levy solution is a perfect one but we do say that it is the best one available. If workable exemptions can be found to take account of the needs of those who deserve exemption, we shall be in a much better position than we are now. Legalising home taping, plus the introduction of a levy system to compensate, must be preferable to the present position. That is the real choice we have to make and we are sure that our judgment is correct.

Mr. Wigley: The Government have got themselves into an almighty tangle. That became clear in Committee and has become clear again tonight. Day after day we hear from the television advertisements that we are moving towards 1992. Surely we should be taking account of what has been happening in continental countries in recent years and we should be arranging our affairs in a way that gives fair play to the composers and musicians in the countries of Britain.
The Government are guilty of bad faith on this issue. That has been pointed out to Ministers by Conservative Back Benchers. The Conservatives fought an election only a little over 12 months ago on a policy of introducing charges on blank tapes and then did an immediate somersault. Government Back Benchers and voters outside the House, let alone Opposition Members, are entitled to some explanation of why the change was made. We have not had an explanation. It would seem that some of the big battalions, possibly geared to Japanese interests and so on, have been lobbying hard and that the Government have succumbed to the lobbying. The way in which blind people and other disabled people have been used as part of that lobby is distasteful. I am not willing to accept, from either side of the House, any accusation that we are not interested in the rights and well-being of disabled people.
Only last week in the debate on the poll tax we heard that there are other ways of looking after disabled people, who will suffer considerably greater increases in the costs imposed on them from the poll tax than from the few pence involved in this issue. We were told that they could be helped through income support and other methods. That argument appealed to Conservative Members at that time. If the argument was valid then, it is valid now.
The argument put by the Royal National Institute for the Blind to those who have been campaigning on behalf of musicians about why it has not come forward with a scheme is that it is not run in a way that facilitiates the drawing up of a scheme. It is a fragmented organisation, and that makes it difficult. If those who campaign on behalf of blind people were to perceive a real difficulty, they would find a way around it, as has been done in other countries.
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Doing a wrong to one group does not justify not finding a formula for another group. Pitting one deserving group against another is not a reasonable way forward. Hon. Members from the Opposition parties, at least, are aware of the interests of music unions. Many composers and others have to do on a small income. There could be a scheme similar to that in Germany, where there is a

mechanism for spreading out the benefits that come from a charge on blank tapes. Goodness only knows that such groups deserve it. There are mechanisms for safeguarding the interests of disabled and blind people. I am convinced of that. People who are involved with disablement believe that that can be done.
It is not a lucid argument to say that, because of an effect on another group, we shall do an injustice and that we shall not apply the laws of copyright to musicians and composers. There is a way round it. It may be by exemption, it may be by passing over a fund en bloc to the RNIB or other organisations, or it may be by other schemes. I am convinced that it can be achieved.
We are doing the arts in general a disservice by not moving in the direction in which other groups have been moving on the issue. I do not know whether the Government really believe in what they are doing. We have heard from the Under-Secretary of State for Industry and Consumer Affairs, in his last few hours in his present post. I do not know whether he really believes in the change of course that the Government are taking. I do not know whether the Under-Secretary, the hon. Member for Coventry, South-West (Mr. Butcher), who has done such a great job for the Government on the Bill, really believes, as a Minister with a considerable interest in music and composition, in what the Government are doing as he moves on to a post in the Department of Education and Science.
The arguments of justice are on the side of making sure that there is a mechanism for recompensing composers, musicians and others. There are other mechanisms for making sure that, in doing so, we shall not do down groups such as disabled people. I should have thought that the Government, with the abilities that they have in other directions, could surely find a way around the problem, even at this late stage.

Mr. Bowis: A little earlier, with great grace and panache, my hon. Friend the Under-Secretary of State for Corporate Affairs stepped down from a previous policy held during the consideration of the Bill. He reminded us of Oscar Wilde's cry that what the world needs is more geniuses with humility; there are so few of us. My hon. Friend was a genius. He showed great humility, and down he stepped with the 28-day shift, and quite rightly, too. Otherwise, we would have condemned our fellow citizens, every month for the rest of their lives, to going back to the tape machine to put on another video to fulfil the terms of the law. We have come up with another solution. He acknowledged that he had left the matter open and had left copyright rather bare and undefended. He suggested that our amendments might cover silent movies only. At least it is a way forward that he can pick up, take away and run with.
I have some sympathy with the Government. I understand their dilemma. They support the principle of copyright and acknowledge that the present law is unenforceable. They accept the principle of finding an alternative, but they do not think that a viable alternative is the tape levy scheme. I am not one who thinks that the levy is the perfect solution for all problems. The best solution is to find a way of enforcing copyright. The trouble is that copyright is difficult to enforce, yet the House was the authority that decided that performers, composers and producers of music and films should have copyright.
The purpose of such a decision was, and can only have been, to provide a right to income for one's work and the right not to have one's work tampered with. But Parliament did not provide the realistic means or the method for the performers, composers and producers to enforce that right. In theory, little Johnny, who takes a cassette to his room and records the tape that his friend has lent him, could be taken to court by the record producer. That is clearly absurd. Such a case would not stand up in court and the public would not accept the "catch-you-out" society that sent tape-detector vans out to establish whether little Johnny was recording in his back bedroom. The tape-copying detector van is not with us yet, and I suspect that it never will be.
We have a law that is unenforceable, and unenforceable laws are bad laws. I do not say that we should abandon copyright law and remove it from the statute book. I say that an alternative form of compensation must be found for those whom we sought to protect originally. The Government have rightly rejected the first option as unfair to the music and films industries, and to composers and performers especially. They rightly proposed a modest tape levy in the past. That was the policy of the Conservative party at the general election and that was the policy on which the Government were elected.
During the general election, my hon. Friend the Minister talked about not wanting to have a tax, but there was a campaign to portray the levy as a tax. The Conservative party explained that none of the revenue would go to the Government. It was said that the funds raised would go to the performers and copyright owners as a royalty payment by the consumer for recording copyright material. Although composers, lyricists and artists assigned their rights to the recording companies, they would be entitled to a proportion of the levy revenue in their own right. That was the policy on which we were elected, and it was a policy which made sense.
Everyone was agreed on the principle and the question was how to implement the scheme. Since then, the Government have said that the scheme cannot be implemented. The industry has said that it could and that it would implement it. France has said that it has been implementing such a scheme since 1985. Germany says that it has been doing it for the past 20 years. Portugal, Spain, Belgium and Italy are saying, "We are about to do it." When the Bill was being considered in Committee, Australia said, "We shall do it too."
The issue was debated in Committee, and it is right that it should be discussed again this evening. We are conscious of the needs of the visually and aurally handicapped and we understand their concern. We insist that any levy should not impose hardship on such people. In other countries, such levies are absorbed by the industry. That means that no cost is passed on to the consumer. The British industry went further than that. The music industry offered a special deal for the blind and the deaf, with free tapes to be provided for such people until and unless it was clear that there would be no increase in price. Instead of having an imposition on such people, a new deal is on offer for those who suffer from sight or hearing problems.
The Government have said that it would be difficult to work out a scheme. In Committee, they said, "It will be difficult to work it out and we do not like the sound of what is being proposed." Surely we had a right to expect that between Committee and Report the Government would be consulting—"You, the industry, say that you

could do it. How would you do it? You, the members of the Committee, said that it could be done. How could it be done?" I, as a member of the Committee, have not been asked for my views. I think that, similarly, my colleagues in Committee have not been asked. I do not know whether Opposition Members have been asked for their views, but I doubt it. The industry has not been asked to come forward with a scheme. The Music Copyright Reform Group has not been asked. The same goes for British Phonographic Industry Ltd. the Composers Guild of Great Britain and the British Copyright Council. Since the Committee reported, these bodies have not been asked by the Government how they would put the will of the Committee into practice.
It seems that a decision has been taken behind closed doors to oppose enabling legislation that would enable a scheme to be implemented of the sort that the members of the Committee had in mind.
The Government and hon. Members must remember that we are talking about 100 million blank tapes being imported and sold every year in this country. If we deduct 10 per cent. for those who use tapes for oral history studies—I think that was the phrase used by the hon. Member for Denton and Reddish (Mr. Bennett)—for little Johnny or for recording little Joanna's first squeaks on the recorder, we are still talking about 90 million tapes. Not one penny of the proceeds of those tapes is given to those whose music is being recorded. That is what we are trying to put right. The Government's first thoughts were right. The election policy on which we stood and were elected was right, and I tell those composers, performers and companies to whom I gave my word at the election, "This is not the moment to let you down."

Mr. Malcolm Bruce: I found the Minister's explanation puzzling. Part of the argument is that if it is difficult to enforce copyright, we should not legislate to protect it. Having not been a member of the Committee, I am left wondering why large tracts of the Bill have been enacted if that is the Government's sentiment.
We are discussing a disabling amendment. The Committee included in the Bill—the legislation will be in force for 20 or 30 years—the power to consider a scheme. The Government have said, "We do not want even to consider the possibility of introducing the scheme for the foreseeable future." That is an inexplicable stance for the Government to take, especially as they fought the election on precisely this issue. We are being asked to remove something from the Bill which does not require the Government to do anything; it simply allows them to consider a possibility in the future. 
The arguments that have been advanced about the problems of disabled people are out of proportion and perspective. I have not heard any pleas or squeals from those who are opposed to the levy about the VAT that disabled people must pay on blank tapes, which is a far more substantial burden than any levy. I would be in favour of a scheme that reduced or eliminated the impact of the levy on disabled people, but that does not justify removing from the Bill the possibility of considering a scheme in the future without primary legislation.
None of the arguments that have been advanced as special pleading from disabled people are convincing. From certain quarters, that pleading is only crocodile tears. Disabled people could do with many more radical


reforms and more assistance from the Government than they have received. To hear Ministers pleading the cause of disabled people is, in some cases, a little distasteful.
There are many ingenious ways in which a levy could be introduced so that the concerns of interested groups could be accommodated. We heard the arguments about distribution and who would receive the money, but we are talking only about the principle of setting up a scheme and discussing in detail how that could be done. Limits could be set, and part of the levy could be specifically earmarked for promotional purposes. It would be possible to allocate some of the money to the Royal National Institute for the Blind and the Royal National Institute for the Deaf and make them agencies for the distribution and sale of exempt tapes.
The arguments that have been advanced are not convincing; they are cosmetic and are designed to cover up the nakedness of the Government, who have done a volte-face that has embarrassed their supporters, many of whom have gone out on a limb to support the party line only to be asked to deny what they said after such a short period. It is not often that I speak on behalf of the Government's supporters, but many of them have been given a shabby deal.
I have been involved in one or two meetings where I have heard the vigorous and enthusiastic support of Conservative Members of Parliament for the principle of the levy, and I have seen their satisfaction when they have presented that as the Government's official policy. It is somewhat embarrassing from their point of view that they should be left to defend a volte-face for which they have had no adequate explanation.—[Interruption.] The protests suggest that they are deserving of sympathy.
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We have failed to receive any explanation for this change, and I believe that the Minister will do himself a great disservice if he does not come up with a more convincing explanation at the end of this debate than he did at the outset. The issue has been thoroughly discussed, had all-party support and had the majority of the House behind it, but has reached the stage where we are now being asked to reverse that policy.
The Minister should explain to us why he cannot leave in the Bill enabling clauses, why the prospect of ever having a levy should be excluded from the legislation and why we will have to come back to the House and introduce new legislation if there is to be such a levy. We should resist the Government amendment. I hope that the Conservative Members, who have made clear how strongly they feel about it will stay behind and join us in the Lobby. I believe that they should defend their manifesto in a way that the Government are incapable of doing.

Mr. Chris Butler: On 24 May, my hon. Friend the Minister said:
I will look again to see whether we can find a way to meet the mischief that we have identified."—[Official Report, Standing Committee E; 24 May 1988, c. 343–4.]
I listened carefully to my hon. Friend's speech, but I did not hear any new way to meet the mischief that he admitted. There was no remedy for the injustice that the White Paper recognised in 1986, when it said:
the law should be amended to ensure that the owners of rights are able to derive benefit from them.

My hon. Friend has dismissed the blank tape levy as rough justice. That is so, but the present situation that the Government support trades rough justice for no justice. At the moment, the record industry is getting the rough end of the Government's judgment.
Large amounts of money are involved. It is estimated that two and a half times as much music is privately copied as is bought in the shops. The record industry has not been greedy. It said that it would settle for the tape levy, which would raise £6 million or £7 million a year. I believe that that is remarkedly reserved. The record industry is healthy, but many composers and song writers earn less than £5,000 a year from performing royalties—in fact, some 94 per cent. fall into that category. Their loss would be proportionately more significant, and it is they who will suffer most if this illegality is not clamped down.
I wonder whether there is a parallel with the public lending right, which gives compensation to authors for loss of sales because their books are being lent from public libraries. I wonder whether a similar scheme could be devised for records, perhaps costing £3 million to £4 million. I am sure that that would cost less to administer and be easier to collect than the blank tape levy.
If the majority of adults now tape illegally, if they are not to be penalised in any way, and if no payment is to be collected by this admittedly cumbersome levy, at least I believe that we, the collectivity of taxpayers, can right the most glaring injustices caused by those infringements. After all, the formula or any public listening right could be weighted in favour of the song writers and composers, which may be a way to meet the mischief that the Minister has admitted.

Mr. Buchan: I shall be brief, but I thought it right that a voice which was not heard in Committee should be heard on this issue, especially as my only other contribution was to release certain aspects of copyright in relation to music.
I am impressed by the power, force, scale and nature of the people who have been advocating in Britain the need for such a levy to secure not rough justice, but an element of justice. The Musicians Union is one. I remember a campaign with which I have been associated with the Musicians Union over the years—the campaign for live music. It is interesting that even at this late stage the Musicians Union has again reminded us of the importance and value to it of such a levy.
The problems facing professional musicians in this country are exacerbated by the increasing access to recording and broadcasting, which has meant that live music is under threat because we have been getting a kind of diminution of the base from which our leading musicians come. At one time, when music was heard live, there was a broader base of practising musicians from which the top players emerged. As soon as there is mass recording and broadcasting, as we have now, the base begins to wither because the concentration is on those at the top of the apex who are heard and broadcast. We see that not only in pop and rock, but in classical music.
I was recently reading some of Bernard Shaw's music critiques and realised that the majority of people in this country could hear any of the Beethoven quartets far more frequently than Bernard Shaw could have heard them in his lifetime. If he heard one of the quartets three or four times, he was lucky, yet any of us can hear any of them any


number of times. That makes me all the more aware of the perception of his criticism. We never take such facts on board.
I believe that we should have such a levy precisely because I believe that we could feed it back into the music world in general. One problem is that because of the absence of a levy—however small—the concentration is on only a few elite musicians. I mean elite in the sense of the best known because although I do not think that some of them, are good musicians, they are at the top of the pop scale, for a period. Music then becomes specialised, and advanced recording of that elite militates against the advanced recording and sales of cassettes of others who are not quite at the level of Michael Jackson in terms of the public's boosted and and hyped eye.
Therefore, the second, middle or young stage of musicians are militated against. When other music is bought, there is a limitation on the recording of that which those groups want to record. All that helps to militate against what we are seeking to do, which is to extend the base and productivity of the live musicians from whom we will get growth for the apex and the top players of the future.
It is for that reason—among many others—that there is a musical argument about the blank tape levy. Hon. Members have referred to the difficulties that will arise from such a levy and have asked how it will be applied and dealt with, and whether we will put it back into the industry in the form of lending rights as we do with libraries, which was mentioned by the hon. Member for Warrington, South (Mr. Butler).
I think that we can go one better than that. The problem of library lending rights is that those who are already well paid also receive the best royalties from the libraries. The single serious writer may end up with virtually nothing. Jeffrey Archer, for example, would receive more than, say, G. M. Trevelyan at present. G. M. Trevelyan said that it was a disaster for him when his "History of England" became a best-seller, because he had all his taxation problems in one period. If it had been spread over 10 years, as he had expected of an academic work, he would have been a good deal better off.
The problem of lending rights is that those who have, get again. I do not know what Jeffrey Archer pays—but come to think of it, never mind what he pays. As I have said, there is a problem. There is a better solution which was advocated in Labour's "Charter for the Arts", which I fear has suffered a sad demise. We argued that the levy should be used to develop the industry. I have argued for a public domain copyright for traditional music, and I think that we should seriously consider a dead writer copyright to assist theatres and to encourage new writers for the theatre. Such a levy could be an encouragement for new musicians and composers.
I believe that the Musicians Union is saying the same as me, except that it cannot say it so directly. We should invest in the base, for the musical development and education of new musicians, new compositions and their inspiration. The modern classical composer has great difficulties. They are not all Maxwell-Davies. A serious composer has difficulty making any money. They teach or perform. Edward McGuire is one of our leading Scottish composers but he lives by, among other things, teaching and playing in a folk group.
We could assist the levy to help new composers. All political parties have been pledged to a levy. The

Conservative party has not made a convincing case for reneging on its pledge. The Government have talked about difficulties. Every Government, including the one I was in, talked about difficulties when they were afraid to face up to a principle. Difficulties become a substitute for tackling the principle.
Of course there are problems with various organisations, but we should involve them more, saying, "Here is money. How can you best use it?" I do not accept that there is a basic problem. It is a matter of will. The new clause does not say how we should proceed. It says that it will be 30 or 40 years before we consider the matter again, so we should at least write in the power to act. It does not suggest that we should act. Such a provision will sharpen thinking enormously.
I hope that Conservative Members will stick to their pledges. Whatever may be their cowardice in the face of pressures such as we have witnessed, they should say to those who say, "Think of the deaf, the poor, the blind, the lame and the halt": "You did not give a damn for the deaf, the poor, the blind, the lame and the halt when the poll tax was being passed." Such an argument will not wash. Conservative Members who want to stick by their policies had better stick by their courage, their convictions and their party programme, and vote with us.

Mr. Jim Lester: My role in life in this Parliament seems to be speaking late and briefly about matters on which we feel strongly.
I support my hon. Friends the Members for Hertfordshire, South-West (Mr. Page) and for Battersea (Mr. Bowis), who toiled long on the Committee, as have all who have spoken in this debate. I declare an interest in that I am concerned about intellectual property and have been since I came to the House. I welcome this, the first Bill to begin to deal with that issue.
It is not possible to divide the concept of intellectual property between deserving authors, computer programmers and designers and the undeserving performers of music, and expect to carry any weight in international circles. We have a Bill with 294 clauses, and we are leaving a damned great loophole in it. Some 90 million tapes are bought each year. They exceed the number of tapes of original works. If the Bill is left as it is, it will contain a massive loophole on the most essential element of intellectual property. I have listened to all the arguments I have rehearsed all the arguments with every Secretary of State in the Department of Trade and Industry since 1982. At the beginning many of them were reluctant to listen to the arguments but in the end everyone accepted the justice of a blank tape levy.
12.30 am
As has been said, we have been through the procedures of a Green Paper, a White Paper, the Queen's Speech and the Bill. The only two Ministers I got my hands on were the two who arbitrarily reversed the decision without consulting anybody. If the Government think that they can gain respect in the House by passing such legislation, they should think again. There is the matter of rough justice. I have taken part in phone-in programmes. Young people have phoned in and when they understand that they are being asked to pay 10p for the privilege of legally copying anything that they wish, they have said that that


is nothing. They say that compact discs cost £9 or £12 and that they would welcome being put on the right side of the law.
Many hon. Members do not understand what young people do. I invite those hon. Members to go into record shops and have a look around them. On the same side of the shop as the compact discs and tapes they will find blank tapes. Most young people that I know, and certainly my nephews, rush home with a new record and copy it for all their friends and dish it out generally. Of course they do not necessarily charge, but such recording is common practice using the equipment that is now available. They might even copy records for my hon. Friend the Minister so that he can play it in his car when he drives down from his constituency. Perhaps he does not realise that he is breaking the law when he puts such a tape in his machine.

Mr. John Butterfill: Does my hon. Friend agree that the people he is seeking to protect, small composers and people who are struggling, would not benefit from the levy? The large record producers who do not seem to be in financial difficulties would benefit.

Mr. Lester: Does my hon. Friend seek to defend the interests of successful authors such as Jeffrey Archer? I see no point in protecting his rights because he sells many books and makes much money from copyright. Under this levy contracts would change dramatically. With the levy in place new contracts in the music industry would contain clauses that would be different from those that were in place before the levy.
People who would not use blank tape to copy copyright are a tiny minority. The argument of rough justice is turned on its head. It is rough justice that satisfies 90 per cent. of the people who use tape to break copyright as opposed to the tiny percentage who do not. My right hon. Friend the Secretary of State for Trade and Industry defended his decision in the Lords. The only argument that he could think to advance was about the blank tape in his answerphone. He perhaps did not realise that that tape was excluded from the legislation because it would be very unlikely to run for more than 35 minutes. Even if it was not excluded, how many times does one buy a blank tape for an answerphone? I suggest that it comes free with the kit and probably lasts 10 years. On that basis it probably costs a penny a year and I hardly think that that would cause hardship to my right hon. Friend.
This is a shabby move and we will regret it. It makes the legislation that we seek to pass very arbitrary. It will be difficult for my hon. Friends to defend in the courts of Europe and in Singapore and Taiwan, where we choose to reinforce the principle of the copyright of intellectual property. I hope that, even at this stage, the Government will consider thinking again.

Mr. Simon Coombs: There is no more intractable problem in the whole Bill than that which exercises us in this clause. Deliberations by many Governments and, most recently, by the European Commission, have failed to find a good solution to the problem of home taping. Where the rights of the owners of copyright are enshrined in law, as in the United Kingdom, Eire, Belgium, Greece, Luxembourg and Italy—all countries within the European Community—copying is simply theft.
Normally and naturally, society's response to theft is to condemn it and to demand action to stop it. But what happens when the theft is perpetrated by a substantial proportion of the population? It has been estimated that more than 50 per cent. of the population indulges in home taping. When my hon. Friend the Minister said that we were talking about thousands of people, he was rightly corrected by my hon. Friend the Member for Hertfordshire, South-West (Mr. Page). We could be talking about 28 million people or more; it is certainly not thousands.
It is the development of the technology involving a major improvement in the quality of copying equipment and a reduction in its price which has made this practice possible, and the steady reduction in the cost of the equipment has made it increasingly widespread.
The members of the Standing Committee were annoyed that they had been unable to obtain a copy of the European Commission's Green Paper. That document has now become more widely available, and it would be worth while for the House to consider what happens in a number of other European countries. In six countries of the European Community—the United Kingdom, Eire, Greece, Luxembourg, Belgium and Italy—copying is not permitted. In one country, the Netherlands, it is permitted, and in the remainder—Denmark, Germany, Spain, France and Portugal—it is permitted but with the understanding that there should be recompense for the owners of the copyright.
In other words, nearly half the countries of Europe allow for a levy or royalty on blank tapes and the trend in Europe and elsewhere in the world is in that direction, yet in this country the Government choose to buck the trend and deny copyright owners what is rightfully theirs.
The 1986 White Paper "Intellectual Property and Innovation" put forward proposals for a blank tape levy in considerable detail. The Government concluded that copyright owners and performers should be remunerated for the use of their material. The White Paper said:
there is no realistic alternative to a compulsory levy on blank recording tape as a means of providing such remuneration".
The Government were right.
It was proposed that the royalty should be payable by manufacturers and importers who were the first traders in the United Kingdom and that the Secretary of State should specify by order the categories and performers entitled to benefit from the royalty proceeds. At that stage it was suggested that the rate of the royalty should be fixed at 10 per cent. of the manufacturer's price for the blank tape.
The Government said that in reaching their conclusions they had had particular regard to
the need to put the law on a sensible and—as far as possible—enforceable basis, as well as the need to balance the interests of copyright owners and performers with those of the public at large.
I make no apology for putting those words on record once again. They represent the views of the Government in 1986 and even in 1987 at the general election. Those of us who fought the election on that clear understanding of the Government's intention feel aggrieved. We feel let down by what happened subsequently. A new Government took office and new Ministers were appointed to the Department of Trade and Industry. Suddenly, and without any warning, the weathercock swung and the policy changed. None of the facts had changed and none


of the background arguments had changed—only the Ministers. It could go down on record as the fastest U-turn of all time.
What are the arguments that the Government now advance in support of their rejection of the levy, given that they argued comprehensively and satisfactorily for such a levy prior to the election? The Minister has said that there is no acceptable scheme for organisations representing the blind. That is not a great surprise to me. If those organisations were asked, "Is there a scheme that you would accept?", the answer would naturally be no. If the Government had said, "We intend to introduce the levy; will you tell us how you would like to see your members helped?", the answer would have been yes. If one asks the wrong question, one gets the wrong answer.
Many blind people do not want to be treated differently from the rest of the community. Many are keen to have their disability set aside and to be treated as ordinary people, as they are in every other respect. Therefore, why should the Government lean over backwards to help a small proportion of the population who do not want to be treated differently? That would be unsatisfactory, especially as the vast majority of the population would be allowed to abuse copyright and break the law.
Perfectly adequate proposals have been put forward for exempting tapes of less than 35 minutes as well as proposals to make other exemptions that would have satisfied blind organisations had they been put on the spot and asked to discuss them seriously.
The idea that the levy is a tax is constantly raised as a reason for its rejection. My hon. Friend the Member for Battersea (Mr. Bowis) has already quoted what the Government, prior to 1987, said about that. It is not a tax but a royalty or a levy. A tax can only be an impost of Government on people for the benefit of raising funds for that Government. The levy does not fall into that category and every time a Minister uses the word "tax", he is wrong and it is right that we should correct him.
We have been told that the bureaucracy involved is too complicated. The collecting societies already exist and have already said that they are prepared to take on that extra responsibility; after all, what is the responsibility? It means collecting one cheque per annum from each importer of blank tapes, most of which come from the far east. There would not be a great deal of bureaucracy. The cost would lie in the distribution of the revenue from the levy to those who are entitled to receive it. It is up to those receiving it to reach a solution as quickly as possible about how to distribute the levy proceeds to reduce their loss of income. West Germany and France have embraced the levy and it seems to work well for them. I find it impossible to understand the argument that it could not work well here.
Even at this late hour, a number of factors relating to the problem have not been discussed. Six times more music comes from taping than from the original records and tapes. That recording is made from the radio or from records borrowed from others. The basic product of composers, musicians and record companies—irrespective of which of them is the copyright owner—is exploited and the reward of that owner is drastically reduced. The Government would want us to believe that the amount involved is small, but more than 50 per cent. of the population copy music. Already 50 per cent. of the owners of compact disc players use them in conjunction with tapes to record improved quality music. Eighty per cent. of those

between the ages of 8 and 14 are already copying music. More and more younger people are copying music and therefore, in the future, a higher proportion of the population will copy music.
Ninety million blank tapes were imported in 1986. The figure for 1987 will be nearer 100 million. Ninety per cent. of them are used for copying music. The only weapon that the Government offer the aggrieved owners of a copyright is a civil action for damages or compensation, which is virtually unsustainable in the courts. The Government are failing in their duty to these people.
12.45 am
In Committee my hon. Friends proposed that the Government should be enabled to introduce a licensing scheme. The Government do not want it. Why not? Are they particularly anxious to support the importers of Japanese tapes? Are they anxious to deny support to a highly successful indigenous industry, which brings in foreign earnings and is being robbed? Are they anxious to avoid following the lead of their partners in the European Community? Surely not. Are they anxious to resist the sensible arguments of my hon. Friends? Are they anxious to do a U-turn away from their policies of the previous Parliament? Surely not. I do not know why the Government persist with this crazy policy. They will not tell us why—

Mr. Butterfill: Does my hon. Friend agree that it might be something to do with the fact that the general public might conceivably not understand why we would be taking money from the blind to give to the Beastie Boys?

Mr. Coombs: My hon. Friend attempts to drag me back to the arguments about the blind. If he has been listening to my speech he must know the answer to his question. I shall deal with his point about the Beastie Boys, by which I assume he means the pop group and, perhaps, the record industry. It is not the job of the House or the Government to play Robin Hood and decide that the rich are rich enough. The law is the law, and the House should consider that. If, as a result of upholding the law, those who are wealthy become more wealthy, so be it. We cannot pick and choose and tell wealthy people to give up some of their wealth because someone else has found a way of stealing it from them. If we adopt that view, we are all wasting our time here. I do not want to do that.
In fairness, we should note the Government's willingness to take action on the rental right and on the protection of anti-spoiler devices. Both of those are potentially greater threats to the record industry than home taping. We thank the Government for the action that they propose to take. But it amounts to a policeman telling someone that he would take action to stop him being murdered but that he was too busy to stop him being robbed. I do not see the logic or justice of that. We are entitled to demand that the law be upheld. The idea that action on future problems obviates the need to deal with the present one is not tenable.
Finally, I declare my interest. I am a customer of the record industry. I want it to prosper. Without its success, there will be no money for the non-commercial classical music which I love, and no money for the experimental new groups of tomorrow. Had we adopted this policy 25 years ago, when there was little home taping because the technology was not available, we might not have enjoyed


the music of groups such as the Beatles, because the money for contracts to record them would not have been forthcoming.
The Government have failed to deal with the problem of home taping. They have rejected a sensible solution that has been accepted by other Governments. I cannot be like the Vicar of Bray and agree with everything the Government say. If the Government want to stand on their heads from time to time, that is fine; but I shall not join them in what must, for all of us, be an uncomfortable and undignified attitude. If I must be disloyal, I choose to be disloyal to the current policy. Two years ago, I should have been loyal, because the policy then was the opposite of what it is today. I may prove to be loyal again in the future.

Miss Emma Nicholson: Perhaps I may make a point that has not been covered tonight or in Committee. There has been a change since the general election; indeed, there has been a change since the White Paper. If right hon. and hon. Members have a moment to listen—it is not late, but early—they may see the reasoning behind the Government's change in stance.
I speak about technological advance and about further consultation with the computer software industry. Since the White Paper was issued, there has been a shift in the way in which sound recordings are made. Traditionally, music has been recorded in analogue form and computer software has been recorded digitally. That is now changing, and music is being recorded digitally. That means that there is no difference between what one chooses to record and what one chooses to copy. Some of the machines that are coming over from Japan—far more worrying than the market being flooded by blank tapes from Japan—will have exactly the same effect on recording computer software as they will have on recording material produced by the Rolling Stones, if they still exist, or by J. S. Bach. It is the same equipment, and it will make the same recording.
The problem is that, if we legalise the home taping of sound recordings, which we would do by imposing a 10p levy on the price of a blank tape, we shall also legalise—perhaps without meaning to—the home taping of computer software. That represents a very different amount of money. The imposition of a 10p levy on a blank tape may lead one to believe that the composer has been properly recompensed. Perhaps the tape on which one is recording costs £1, so 10p is a nice sum. But computer software may have £2 million-worth of human intellectual endeavour within it. How could we price the levy on that blank tape? I suggest that £100,000 would not be too much.
The technology has shifted in the past 18 months or year. Perhaps that is why the Government have shifted their stance. The computer industry is a £2 billion industry and is growing at the rate of 25 per cent. a year. Of course, people who want home taping to be legalised will answer that the 10p is not meant to pay for computer software, and that people will be authorised to copy only sound recordings. But there will be a problem in that industry, because in today's world sound recordings also include video recordings. The general practice is that when a pop group makes a sound recording, it makes a video, too. The music is recorded not just for the ear, but for the eye. What

fun we shall have if it becomes legal to re-record a video at home, but it is legal to record the audio tape only if one has paid the levy. Yet with an optical disk one uses the same machinery to record both. Perhaps we should leave the proponents of the 10p levy to sort out that red herring for themselves. My problem is how to explain to the House why it is impossible to go ahead with a blank tape levy, given the advances in modern technology.
The computer industry has adopted a completely different stance from that adopted by the sound recording industry. It has put its house in order. I have already referred to the fact that it is growing at the rate of 25 per cent. a year. In the last three years it has managed to contain the growth of theft. Theft has not increased by 25 per cent., in line with the growth of the computer industry. It has remained static.
The industry has saved itself £50 million a year in each of the last three years. It has done that by mounting prosecutions in the civil and criminal courts against those who illegally take computer software. I ask myself whether that might be a possible way forward for the sound recording industry. It has not mounted a single prosecution during the last 10 years against illegal theft. I wonder whether the sound recording industry has dragged its feet because it expected the Government to do its work for it.

Mr. Lester: Is there not a considerable difference in scale between copying computer software and those who are likely to do it for gain and prosecuting every young person between 16 and 18 who makes copies of compact discs? It is difficult to accept my hon. Friend's comparison, because of the gains that those who copy computer software make when they resell the item.

Miss Nicholson: My hon. Friend asks three questions in one. He may not realise the relevance of personal computers. Their sale has increased markedly in recent times. Young people often have in their bedroom a small machine, relatively modest in price, whose disks contain several million pounds-worth of research. Young people like to copy the hard disks of personal computers, thereby creating another floppy disk or hard disk, and to pass them on to brothers, sisters, cousins and school friends. That is why I referred not just to criminal prosecutions but also to civil prosecutions.
I failed to refer to the third leg of the computer software industry's tripod: the education campaign. It has been shaming people into not copying. It has conducted a good educational campaign, including the distribution of pamphlets. There has been education, as well as civil and criminal prosecutions.
My hon. Friend also referred to compact discs and, by implication, to the quality of the recordings. I believe that compact discs will be out of date fairly soon. They will be overtaken by digital recordings that produce excellent, perfect copies which will be sold all over the world. Digital recording has changed the picture. The quality of digital recording means that the copy is as perfect as the original recording.
Much has been made in the debate of the European Community's Green Paper. Chapter 3 deals with home taping. My hon. Friends have quoted selectively from it, but the Green Paper does not recommend the harmonisation by member countries of their approach to the levy. It proposes a multi-faceted approach. In other


words, it suggests that there are a number of ways in which member countries of the European Community can tackle the problem of home copying. The blank tape levy is only one solution, and because of its difficulties the Green Paper does not recommend that all member countries should be harmonised and should follow that route.
1 am
The Green Paper recommends a hardware solution which it highlights as the method which would solve the problem completely. That is the solution whereby, burnt into the core of the recording machine, is material which stops home copying. Encoded on the tape machine and burnt into the hardware is a piece of equipment which will stop copying of that tape if the particular encoding is not present. That is the route which the European Green Paper overwhelmingly recommends to member states.
Finally, if I may look back for a moment, I extend to the Government thanks for their sensitivity in dealing with the practical problems of the disabled, and for listening to the concerns of the computer software industry about information technology. In this clause, as in new clause 5, clauses 17(2) and 24 in particular, the Government have reached conclusions which will provide the proper framework for the continuing creativity and growth of that immensely valuable industry. The Minister and his civil servants in the Department of Trade and Industry have all our thanks.

Mr. Maude: When I introduced the amendment I said that I had no new arguments to offer. This subject has been well aired over many years and the arguments are all familiar. I hope that my hon. Friends and Opposition Members who have spoken in the debate will not take it amiss when I say that no new arguments have been offered by them either. We are all very familiar with this well-worn ground and I hope that the House will agree that we now need to reach a decision.
The hon. Member for Sedgefield (Mr. Blair) said earlier that these were not matters on which any of us could be certain that we had a monopoly of the truth or of wisdom. He ended his speech with a ringing declaration that he was certain that his judgment was right. Nonetheless, clearly we are not dealing with the eternal verities, but with a practical matter on which a practical judgment has to be made. The practical judgment which the Government have made is that a scheme to introduce a blank tape levy cannot be formulated in such a way to do justice to the interests of disabled people.
I have to say to hon. Members who have blithely and glibly said that it can be done if people of good will put their heads together in a practical way and resolve it, that, at a time when the Government were fully committed to introducing such a scheme, we worked hour after hour with the relevant bodies to try to formulate such a scheme, and I have to say, in all honesty, that it cannot be done. It has been suggested that we keep the power on the statute book just in case it becomes possible later on. I honestly do not think that it would be an act of good faith to do that and to hold out the hope to those who set store by it that at some stage such a levy will be introduced. It cannot be done, so it would not be right to retain the power.
It has been pointed out that West Germany has had such a scheme for 20 years. However, that scheme makes no provision for exempting or providing relief for innocent users of blank tapes. To say that that provides a model for

us is to ignore the remarks of those who have been propounding the scheme. As has been made clear tonight as well as in Committee, a precondition of having a levy was that a scheme for providing relief for innocent users should be incorporated. In view of the Government's practical conclusion that no such scheme can be formulated, I have no alternative but to invite the House to agree with my amendment.

Question put, That the amendment be made:—

The House divided: Ayes 134, Noes 37.

Division No. 444]
[1.5 am


AYES


Alexander, Richard
Hunt, David(Wirral W)


Alison, Rt Hon Michael
Hunt, John(Ravensbourne)


Amess, David
Hunter, Andrew


Amos, Alan
Irvine, Michael


Arbuthnot, James
Jack, Michael


Arnold, Jacques(Gravesham)
Janman, Tim


Arnold, Tom(Hazel Grove)
Jones, Gwilym(Cardifl N)


Ashby, David
Jones, Robert B(Herts W)


Atkinson, David
King, Roger(B'ham N'thfield)


Baker, Nicholas(Dorset N)
Knapman, Roger


Baldry, Tony
Knight, Greg(Derby North)


Batiste, Spencer
Knight, Dame Jill(Edgbaston)


Bellingham, Henry
Lang, Ian


Bennett, Nicholas(Pembroke)
Lawrence, Ivan


Bevan, David Gilroy
Lennox-Boyd, Hon Mark


Blackburn, Dr John G.
Lightbown, David


Boswell, Tim
Lilley, Peter


Bowden, Gerald(Dulwich)
Lloyd, Peter(Fareham)


Brandon-Bravo, Martin
Lord, Michael


Brazier, Julian
Lyell, Sir Nicholas


Bright, Graham
McLoughlin, Patrick


Burt, Alistair
Major, Rt Hon John


Butcher, John
Mans, Keith


Butterfill, John
Marshall, John(Hendon S)


Carlisle, Kenneth(Lincoln)
Marshall, Michael(Arundel)


Carrington, Matthew
Martin, David(Portsmouth S)


Carttiss, Michael
Maude, Hon Francis


Chope, Christopher
Maxwell-Hyslop, Robin


Clarke, Rt Hon K.(Rushcliffe)
Miller, Sir Hal


Colvin, Michael
Mills, Iain


Coombs, Anthony(Wyre F'rest)
Mitchell, Andrew(Gedling)


Couchman, James
Monro, Sir Hector


Cran, James
Morris, M(N'hampton S)


Currie, Mrs Edwina
Morrison, Rt Hon P(Chester)


Curry, David
Moss, Malcolm


Devlin, Tim
Moynihan, Hon Colin


Dorrell, Stephen
Neale, Gerrard


Dover, Den
Neubert, Michael


Durant, Tony
Newton, Rt Hon Tony


Fallon, Michael
Nicholls, Patrick


Favell, Tony
Nicholson, David(Taunton)


Fenner, Dame Peggy
Nicholson, Emma(Devon West)


Fishburn, Dudley
Onslow, Rt Hon Cranley


Forman, Nigel
Paice, James


Forth, Eric
Parkinson, Rt Hon Cecil


Franks, Cecil
Patnick, Irvine


Freeman, Roger
Porter, David(Waveney)


French, Douglas
Portillo, Michael


Garel-Jones, Tristan
Powell, William(Corby)


Goodson-Wickes, Dr Charles
Rathbone, Tim


Gow, Ian
Redwood, John


Gregory, Conal
Ryder, Richard


Griffiths, Peter(Portsmouth N)
Sackville, Hon Tom


Ground, Patrick
Shaw, David(Dover)


Hamilton, Neil(Tatton)
Shaw, Sir Michael(Scarb')


Hargreaves, A.(B'ham H'll Gr')
Shelton, William(Streatham)


Hargreaves, Ken(Hyndburn)
Shepherd, Colin(Hereford)


Harris, David
Speller, Tony


Hawkins, Christopher
Spicer, Sir Jim(Dorset W)


Hayes, Jerry
Stern, Michael


Hayward, Robert
Stewart, Allan(Eastwood)


Heddle, John
Stewart, Andy(Sherwood)


Hind, Kenneth
Sumberg, David


Howard, Michael
Thompson, Patrick(Norwich N)


Howarth, G.(Cannock &amp; B'wd)
Thurnham, Peter






Waddington, Rt Hon David



Watts, John
Tellers for the Ayes:


Widdecombe, Ann
Mr. Alan Howarth and Mr. David Maclean.


Yeo, Tim





NOES


Barnes, Harry (Derbyshire NE)
Lester, Jim (Broxtowe)


Blair, Tony
Loyden, Eddie


Bowis, John
McAvoy, Thomas


Bruce, Malcolm (Gordon)
Martlew, Eric


Buchan, Norman
Meyer, Sir Anthony


Clay, Bob
Michie, Bill(Sheffield Heeley)


Coombs, Simon(Swindon)
Nellist, Dave


Cousins, Jim
Page, Richard


Cryer, Bob
Rowlands, Ted


Cunliffe, Lawrence
Skinner, Dennis


Dewar, Donald
Steel, Rt Hon David


Dixon, Don
Taylor, Matthew(Truro)


Doran, Frank
Wallace, James


Fisher, Mark
Welsh, Michael(Doncaster N)


Foster, Derek
Wigley, Dafydd


Golding, Mrs Llin
Wilson, Brian


Greenway, John(Ryedale)



Haynes, Frank
Tellers for the Noes:


Hughes, Simon(Southwark)
Mr. Allen McKay and Mr. Alun Michael.


Jones, Ieuan(Ynys Môn)



Kirkwood, Archy

Amendment accordingly agreed to.

Amendments made: No. 59, in page 25, line 39, leave out 'hiring' and insert 'rental'.

No. 60, in page 25, line 41, at end insert 'in electronic form'.

No. 61, in page 25, line 42, leave out subsection (9).

No. 62, in page 26, line 2, leave out 'hiring' and insert 'rental'.—[Mr. Maude.]

Mr. Doran: I beg to move amendment No. 5, in page 26, line 2, at end insert—
'(11) No order made under this section shall apply to a public library and such libraries shall be treated as licensed by the copyright owner to hire to the public copies of sound recordings, films or computer programs without payment of royalty.'.

Mr. Deputy Speaker (Sir Paul Dean): With this it will be convenient to discuss Government amendments Nos. 156, 158 and 160.

Mr. Doran: As clause 65 stands, it provides for an automatic licence of right for the payment of royalties in certain instances. This applies to
the hiring to the public of copies of sound recordings, films or computer programs".
The amendment seeks to exclude public libraries from the operation of the royalty clauses. Libraries are public bodies carrying out public duties. They tend to hire tapes and videos that are not in demand and thus are not easily obtainable from commercial lending sources.

Mr. Maude: Public libraries in the United Kingdom spend about £4 million a year on purchasing sound and video recordings for lending. The interests of copyright owners would be adversely affected if public libraries were exempt from the rental right.
Making public libraries subject to the right will not necessarily add to public expenditure. Library authorities have power, if they wish, to pass the rental fee on to the people who borrow sound and video recordings and computer programs from them.
The Bill as it stands would allow public libraries to avoid the rental right by lending sound and video recordings and computer software without charge.
It is Government policy to encourage public libraries to generate new income for growth by providing a wider range of charged services. The Government therefore intend to make public libraries subject to the rental right whether they lend free or for a charge. Amendments 156, 158 and 160 will achieve that.

Mr. Doran: I am not satisfied with the Minister's response, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 69

RECORDING FOR PURPOSES OF TIME-SHIFTING

Amendment made: No. 243, in page 27, line 31, leave out subsection (2).—[Mr. Maude]

Clause 76

REQUIREMENT THAT RIGHT BE ASSERTED

Mr. Fisher: I beg to move amendment No. 9, in page 30, line 19, leave out from 'public' to end of line 21.

Mr. Deputy Speaker: With this it will be convenient to discuss amendment No. 10, in page 30, line 22, after 'public', insert
'otherwise than by broadcasting or including it in a cable programme service'.

Mr. Fisher: As Ministers know only too well, we are staunch supporters of the importance of moral rights. We shall be advancing that support when we come to support amendment No. 11. There are circumstances, however, where moral rights are impracticable, and we believe that the case that has been made by broadcasters—I understand that the Government are aware of it—is one such example. If clause 76(4)(a) stands, broadcasters filming a programme of pictures or sculptures for an arts programme would be obliged to identify at the end of the programme every artist and every work that has passed in front of the camera.

Mr. Butcher: I am rather surprised that the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) tabled the amendment. Opposition Members devoted much time in Committee to trying to strengthen the moral rights of authors, but are now suggesting that we considerably weaken them. They are singling out one group of authors whose cause they have hitherto championed—photo-graphers. Amendments Nos. 9 and 10 seek to deprive the authors of artistic works of the right to be identified when their works are broadcast or included in a cable programme service. I assume that the amendments have been tabled on behalf of broadcasters who are concerned about identifying photographers whose works are included in television and cable programmes.
In Committee, I explained our reluctance to introduce any further exceptions to moral rights. We feel that we have gone far enough to meet the concerns of users of copyright works who feared that their normal business practices would be turned upside down by the new moral rights. The Bill already provides that, first, the paternity right does not apply to employees. It would not even arise in the case of a photographer employed by a broadcaster. Secondly, clause 78(5) disapplies moral rights in respect of


any work made for the purpose of reporting current events. This would include a photograph taken to illustrate a news item.
For works made by freelance authors for non-current affairs programmes, there are further safeguards. The paternity right has to be asserted formally by the author concerned before it can be effective, and there is always the possibility of agreeing to a waiver of the right. These provisions offer plenty of scope for broadcasting organisations to reach satisfactory contractual arrangements with freelance photographers.
The amendments pick on one group of authors for rather unfair treatment. I cannot see why the author of a literary work—such as a poem recited on television— should enjoy the paternity right when the author of the photographs broadcast to illustrate the poetry should not. I believe that they should be treated in the same way. Television is a very important medium for authors, as it offers a unique opportunity to reach a wider audience. It would be unfair to take this opportunity away from photographers without very good reasons. I am not persuaded by the hon. Gentleman that there are difficulties for broadcasters in the Bill, and, regrettably, I must therefore resist the amendments.

Mr. Fisher: It is late, and I accept that it is confusing when there are so many amendments. The Minister's brief to resist the case of photographers was a good one, but I was not making a case on behalf of photographers.
Visual images are referred to in line 20 of clause 76, which amendment No. 9 seeks to delete. A broadcast for "Arena" or a similar arts programme, which showed in front of a camera a series of sculptures or paintings, would be a visual images broadcast. If the clause stands unamended, the moral rights of all artists involved would have to be recognised, and at the end of the programme there would have to be a long and tedious list of every artist represented in the documentary or programme. Surely that cannot be the Government's intention. I accept what the Minister has said about photographs, but could he deal with works of art that are broadcast during a television programme?

Mr. Butcher: I am grateful for the hon. Gentleman's indulgence, especially at this time in our proceedings. I do not know whether the particular category I was referring to was the one that he wished me to deal with, but I did mention the point about waivers. I said that alternative arrangements could be made. It is a question of presumptions in the Bill. I believe that the arguments that I have adduced for one category are pertinent for the category that he mentioned.

Amendment negatived.

Clause 78

EXCEPTIONS TO RIGHT

Mr. Fisher: I beg to move amendment No. 11, in page 32, leave out lines 8 and 9.
I believe that the Government have recognised, and the Minister has recognised in his remarks, that in Committee we had been staunch supporters of moral rights. Amendment No. 11 seeks to assert the moral rights for journalists. It is a pair with our amendments Nos. 4 and 3 that we discussed earlier, and, sadly, we were not able to persuade the Government to change their mind on that

occasion. However, it is important that we should go on record as saying that the journalists, having lost their effective economic copyrights because the Government refused to accept amendment No. 3, should retain at least their moral rights. Sadly, clause 78(3)(a) removes even their moral rights. It is a black evening for journalists when the rights that they enjoyed under the 1956 Act are not only being taken away in economic copyright, but when, at last, other classes and sectors of copyright owners are being granted moral rights. We applaud the Government for granting those rights but do not agree that the journalists, as employed authors, should be excluded.
The Government have not had a good night in protecting the rights of journalists, but if they accepted amendment No. 11 it would be some sop to the journalists that their moral rights—their integrity tied up with their intellectual copyright—would be acknowledged. If the Minister does not accept this amendment, he will compound the felony of the Government's economic copyrights with the ending of their moral copyrights even before they have begun.

Mr. Rowlands: Subsection (3) is the most obnoxious part of the Bill. It says that anyone who is an employee does not have moral rights over what he writes. It is a simple point, but it is the reason why we seek to delete it.
I shall remind the House of what moral rights are. They are the rights of a person who writes or produces something to prevent distortion of his work by the owners—in this case by the owner of a newspaper or a magazine. Apparently, we give those rights to individuals who write on a freelance basis up to a point, but we do not give it to anyone who is employed. The notion that an employee has no moral rights over what he writes is one of the most obnoxious features of the clause.
On various occasions it has been said that moral rights could not be given, because a person is writing for a newspaper on a daily basis, events are moving and there is a need to edit copy, and therefore what was actually printed was often a collective work. In some ways, I can understand the practical arguments of daily journalism, but when the removal of those rights is considered with subsection (6)(b)—which actually removes the moral rights of anyone who writes for a newspaper, magazine or a similar periodical—one finds that if one wrote an in-depth article as an employee of a quarterly magazine, which would have nothing to do with the instant nature of daily journalism, one would still not have moral rights over that work. It would still be possible for the editor of a quarterly magazine to distort, edit and change the whole nature and character of that in-depth article. If one takes 3(a) and subsection (6) together, that is the effect of the provisions of the clause.
We should object strongly and press the Minister again to explain why all employees are not entitled to moral rights. Many newspapers, magazines and periodicals will carry reflective pieces which require the sort of research that should attract moral rights.
I did not find the Minister at all convincing in Committee about subsection 3(a) or subsection (6). He got in a terrible tangle about what a periodical and a magazine are. We believe that an employee of a newspaper, magazine or periodical is perfectly entitled to moral rights over what he writes.

Mr. Doran: The 1981 Green Paper introduced the idea of moral rights. It was fairly specific about what a moral right was to be. It emphasised that it was to be quite separate from the economic right which attaches to copyright.
There was no mention of any restriction of the moral right. The White Paper of 1986 used the same terms and said:
the Government proposes to legislate for moral rights as follows:
(a)authors will be given the right to claim authorship and to object to distortion, but not to modification of a work to which they could not reasonably refuse consent;
(b)these moral rights will be independent of the economic rights, and will be exercisable only by the author."
It then explained what would happen after the death of the author. There is no restriction to the right there. A moral right seems to fill the gap left by the Government's removal of copyright from journalists. I wonder what the Government find so objectionable about the author of a work, regardless of whether he has any economic rights on the basis of being the author, having such a right.
We had a long debate in Committee about the impact of the law of defamation in this area. The Government are being disingenuous. I do not understand why such employees should be excluded from having a moral right. It is a concept I welcome.

Mr. Butcher: As the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) said, the issue has been debated at length. I am sorry that he did not find what I said in Committee convincing. The situation with regard to the paternity right now is not too dissimiliar from that which is proposed in the Bill.
Local and national newspapers are not littered with bylines by right in the exercise of moral rights of authors over every piece that appears, and I have not heard Opposition Members argue that that should be the case. Their difficulty has been to find amendments that would not impose new conditions, not to say restrictions, on how newspapers have traditionally been put together.
The question before us is whether we should unravel one of the basic principles of the Bill—the distinction we have made between the rights of employed authors and those of freelance authors. We have tried to produce a formula which recognises the needs of the market place and which defers, as it should at the appropriate moments, to the Berne convention. That is the basis of our approach. I feel that I can ask the House to resist the amendment, but I shall come back to that point in a moment.

Mr. Fisher: Before the Minister leaves this point, will he widen his remarks? Once again, as in Committee, he has confined his examples to the newspaper industry, with some of the pressures of time and the difficulties that my hon. Friends have already referred to. We all acknowledge that there are genuine difficulties there, although we believe that they are not as great as the Government make out. Will the Minister accept that the way in which clause 76 is worded covers a range wider than just the newspaper industry?
The curator of an art museum or gallery, for instance, might write the foreword of the catalogue for an exhibition, which will be a work of great scholarship, perhaps distilling a lifetime's work and understanding of a

particular artist or period of furniture. However, because that person would be an employed author, employed by the gallery, he or she would have absolutely no rights to be acknowledged at the beginning of the catalogue. Such work is as important as a PhD thesis, a doctorate or any other sort of learned treatise, but because the curator would be employed, he or she would not have any moral rights. Surely that cannot be what the Government intend. Will the Minister address the point that this issue goes far wider and has many more serious implications than for just the newspaper industry?

Mr. Butcher: I was going on to address that point, but the hon. Gentleman began his remarks with a statement of fairly fundamental belief to his side of the House; and I was simply responding in like manner.
To come to the point at issue and the broader implications, the Bill provides that where copyright vests in the employer of an author or a film director the paternity rights will not apply. Opposition Members appear to agree with us on film directors because their amendment leaves the position of directors unchanged, but not that of authors. I can see no justification for this distinction as I believe that exactly the same principles apply in each case.
The House has accepted the general rule that the employer should own the copyright in a work created by his employee—in other words, the employer should be able to obtain the financial reward from the work and use it in any way that he likes. However, although economic and moral rights are separate, it is clear that the requirement to identify authors might well interfere with the freedom of the employer to use the work in the way he thinks best. A company issuing its annual report is making a corporate statement and it would not be appropriate to identify the author of that work in the manner that is required by clause 76. It is probable that the report is an amalgam of works of many different contributors. Even if the separate works could be identified, it would not be appropriate to list all the individuals concerned.
In some situations, the provisions for assertion and waiver of paternity right could offer a way round the problem, but we do not think it would be appropriate to have to rely on these provisions in the employer-employee context. Apart from the matter of principle that I have mentioned, administering moral rights would create an extra burden on employers. Details of assertions and waivers would need to be kept up to date and associated with particular works. That in itself would be a complex task since the paternity right can be asserted or waived generally or in relation to any specified act or description of acts. Extra staff might be needed to cope with it.

Mr. Rowlands: The Minister is resting his case on principles and clear distinctions between what he described earlier as employed and freelance writers—at least, that is what I thought he said. Will he confirm that a freelance writer making a contribution to a periodical, encyclopaedia or any collective work also loses his moral rights?

Mr. Butcher: I shall be glad to deal with that and with the point about a curator. For the moment I shall continue my response to the hon. Gentleman, who is moving away from his amendment. Instead of using his paternity right to achieve greater public recognition, an employee might agree to waive his identification right only in return for extra money or improved conditions. This economic use of


the right would be no more justifiable than the exercise of copyright by employees. An employer should not have to buy the right to use a work for which he has already paid, nor should he be forced to choose between identifying the author or not using the work at all. That would happen if the employee refused to waive his paternity right.
The only common-sense approach to avoid such problems is to disapply the paternity right for employees. As Opposition Members will know, it is for that reason that I must resist the amendment just as I resisted their blandishments, no matter how elegantly argued, in Committee. The nub of the matter is that the principle goes right through the Bill and is absolute. If a curator is an employee, no matter how learned, he would be caught by the moral rights provision in the Bill. I cannot give the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) the assurance that he seeks. The curator is an employee and as such has the advantages that I have listed in earlier debates. It is for him to deal with the matter when he accepts the normal conditions of employment.

Mr. Rowlands: The Minister said that he would answer my question but he has made the distinction between an employee and a freelance. Am I right in thinking that a freelance writer for any periodical, dictionary, encyclopaedia or collective book of reference would not have moral rights?

Mr. Butcher: The freelance writer has moral rights unless, as I said earlier, he decided in his contractual arrangements to waive them or if he enters into any other sort of waiver arrangement. We have made the distinction throughout the Bill between freelance and employed authors. With the exceptions that we discussed in Committee, moral rights apply to the freelance author. The hon. Gentleman will remember those exceptions, one of which was for the purposes of reporting current events. In general, we have not moved our position since Committee stage. The hon. Member for Merthyr Tydfil and Rhymney asked about work written for a newspaper or other periodical or for a collective work of reference. That does not enjoy the moral rights provided in subsection (6) of the clause and in clause 80(4).

Mr. Fisher: The Minister has said several times that this is a matter of principle running throughout the Bill. Will he clarify that it is the intention of the Government, where possible, to stick by the Berne convention? Am I right in thinking that article 6 bis of that convention makes moral rights, the rights of paternity, absolute and does not make the exemptions that the Minister is making? Once we start breaking up the absolute integrity of moral rights, we lead ourselves into the difficulties with which the Minister is struggling.

Mr. Butcher: Of course we defer to the Berne convention to the extent that we need to sign it in order to get appropriate protection for our works and our intellectual and industrial property rights in other countries. A convention is a convention and it is for national Governments to decide how far they go in slavish adherence to its provisions and in observing its spirit and practicalities.
Earlier in the debate it became fairly clear that we have a duty to say to those who draft Berne convention provisions that our copyright reforms on matters such as music and time shifting and the levy are compatible with

that which Berne seeks to achieve. The question of moral rights has first been raised in the Bill. We have brought that forward because Berne invites us to do so. However, I cannot say that we shall accept lock, stock and barrel the argument that the hon. Gentleman's interpretation of Berne should be applied universally. He will find that in different nation states there are different routes to achieving the protection of the Berne convention.

Mr. Fisher: We are deeply dissatisfied and unhappy with the debate and with the Minister's response. He will recall that we have gone to some lengths—with great sincerity—to pay tribute to his handling of the Bill in Committee, which was conducted with great sensitivity, tact and perseverance through the varied and difficult briefs with which he had to deal. Our compliments to him have been absolutely sincere. On this occasion, however, he has let his high standards slip considerably, and we are most unhappy with his response.
It is simply not good enough for the Government to say that although they stand by Berne they propose completely to disregard the spirit of article 6 bis, which is that moral rights are absolute rights for the author. We have acknowledged that there are difficulties in getting the right balance in economic copyright between the interests of industry, investors, consumers and users. We are all well aware that there are no right answers on that because the balance varies from industry to industry and from one set of circumstances to another.
Moral rights are a simpler matter. Both on Second Reading and in Committee we welcomed the fact that the Government were introducing the concept of moral rights. Now, however, they are undermining and undercutting their good intentions by removing a person's moral rights simply because he is employed, so that he does not have the right to have his work acknowledged as the work of his intellect and as his intellectual property. That cannot be a principled view for the Government to take, and it is not to the credit of the Government or the Minister.

Amendment negatived.

Mr. Michael Morris: I beg to move amendment No. 276, in page 32, line 29, at end insert
'or to any work created for the purposes of advertising'.

Mr. Deputy Speaker: With this it will be convenient to take amendment No. 277, in clause 80, page 34, line 16, at end insert
'or to any work created for the purposes of advertising'.

Mr. Morris: The amendments deal with advertising. The first deals with the moral rights of the creator of an advertisement in relation to the identification in clause 76 and the exceptions to it in clause 78 and the second with the integrity of a piece of work, mentioned in clause 79, and the exceptions to it provided in clause 80, to which the amendment refers.
I think that the House knows of my deep involvement with the world of advertising, which has lasted in a general sense for some 25 years. As someone who has tried to keep track of the Bill's proceedings—a task made all the more difficult by the fact that I was chairing another Committee—I venture to suggest that the reality of the world of advertising is a factor on which Ministers have not really had time to reflect.
Some of us would maintain that the central issue of ownership of copyright on commercially produced material should rest with person paying the bill and not with the artist, photographer, copywriter, visualiser or anyone else. In industry there is absolutely no difference between the role of the creator of advertising and that of reseach chemists, market researchers, production engineers, packaging people or anyone involved in the marketing of a product.
The involvement of the creator of an advertisement is transitory, whereas a manufacture is far from transitory. Some of our great brands have been nurtured by generations of marketeers who have seen the gaps in a market, and identified opportunities arising from changes in taste or attitude—opportunities that have then been taken and backed by the resources of the company.
The issue before us is even more tightly drawn. Amendment No. 276 deals with identification of credit. Exemption has been given to newspapers on the grounds that one cannot have a whole newspaper full of by-lines. I ask the Minister how on earth one can have a list of credits for a piece of packaging. How on earth, on a 15-second commercial, is one to list the producer, director, film company, dubbing studio, visualiser, copywriter, creative group head, sound studio, agency and others—all of whom are in some respects authors of the advertisement? By definition they should all have credit, but, frankly, that is unworkable and unreasonable. The idea is also unrealistic as regards press advertisements, many of which are worked on and created within a short deadline.
In a previous incarnation I used to handle some of the Central Office of Information work, particularly in the role of standby agency. During the three-day week I remember that we produced layouts in the morning, got them approved by lunchtime and were running the advertisement the same night. On occasion I even used to write some of the copy out of sheer necessity. Who will get the credit in such a situation? In reality it should be absolutely no one.
My other amendment refers to integrity of work. I accept the importance of that to a creative person. The advertising world has, as near as possible, a perfect market—a willing seller and a willing buyer. The creation of an advertisement is dependent on a good brief from the client or the agent; it is they who determine the boundaries of the product proposition, the media in which it will appear and the message that is to be conveyed. The advertisements for Guinness, for example, have changed dramatically over the years from the Toucan of the early years to the situation advertisements and so on. A brand also undergoes subtle changes and I do not believe that any advertiser can afford a creative prima donna to prevent the development of a brand.
If the reporting of current events argument is to be accepted, it is clear that, on grounds of practicality, common sense and the need to ensure that our marketeers are unfettered, my amendment should be accepted.

Mr. Butcher: The amendments propose to add to the list of exceptions to the paternity and integrity rights found in clauses 78 and 80. They would disapply moral rights to all works made for the purpose of advertising, and my hon. Friend the Member for Northampton, South (Mr. Morris) put his arguments well.
Moral rights are being introduced to give authors and film directors the means to protect their artistic reputation and integrity. That is particularly important if they have transferrred their economic rights, as is likely to be the case in works commissioned by an advertising agency. Careful consideration has been given to the provisions to try to give authors and directors a worthwhile level of protection while, at the same time, ensuring that moral rights do not create unnecessary burdens on users of copyright material.
As far as the advertising industry is concerned, we feel that the Bill already provides acceptable safeguards. To begin with, the rights do not arise in relation to works created by employees. Moral rights will therefore arise only where works are made by freelance authors and directors, and then the paternity right has to be asserted before it can be effective, and this must be done in writing by the individual concerned. Further, clause 86 provides for the waiver of the rights and I believe that there is sufficient scope for mutually acceptable arrangements to be agreed.
As we shall discuss shortly, special exceptions have been made for reporting current events and for newspapers and magazines. We felt that the need for news reporting to be unhampered by moral rights and the very tight deadlines that newspapers have to work within, merited specific exceptions. We do not believe that the same considerations apply in advertising. I accept that it will frequently be inappropriate for the advertisement itself to identify the authors concerned, but authors are just as aware of this as the agencies which commission them, and in the real world I do not believe that they would make life difficult for themselves by unreasonably asserting their rights. After all, they have a living to earn and could find that agencies will simply refuse to employ authors who make that kind of assertion.
On the other hand, however, there are other ways in which advertisements may come to public attention. For example, awards are made for advertising excellence and it would be entirely reasonable for an author to require that his contribution to a prize-winning advertisement should be acknowledged when the results are published in the trade press.
For these reasons, I do not accept that the Bill as drafted will cause difficulties. I hope that, in view of what I have said, my hon. Friend will feel able to withdraw the amendment. I have mentioned waivers, the need to assert and the issue of employees. Within that mix, and the workings of those who wish to continue to freelance into an agency, there is a formula that would protect my hon. Friend's colleagues and ex-colleagues in the advertising world from the sort of difficulties that they may fear.

Mr. Michael Morris: I am grateful to my hon. Friend, especially for the point about the waiver of rights.
There is a misunderstanding in the Department. The vast majority of work is put out. There is very little employee-related work. I still foresee difficulties, particularly with commercials, but I accept what my hon. Friend has said. We shall have to wait and see what happens; I think that at some later date there will be a need to amend this provision.

Amendment negatived.

Clause 79

RIGHT TO OBJECT TO DEROGATORY TREATMENT OF WORK

Mr. Bowis: I beg to move amendment No. 329, in page 33, line 13 after 'otherwise', insert 'unjustly'.

Mr. Deputy Speaker: With this it will be convenient to consider amendment No. 330, in clause 103, page 43, line 37, at end insert—
'(3) Where in an action under subsection (1) above the court finds that the plantiff's right under section 79 has been infringed but that the treatment complained of was not unjust in all the circumstances, it shall award to the defendant the costs of the action subject to taxation on the indemnity basis.'.

Mr. Bowis: In Committee I sought to protect the right to justified criticism. These amendments—they are either or; I do not seek to have them both accepted—try to take that one little stage further. I ask my hon. Friend to consider them.
I have in mind the problem of a hostile review which tries to show up inconsistencies of argument in an author's work and, to that end, juxtaposes extracts or quotations from it. Such extracts would, by definition, be incomplete. Equally, in a hostile review, they would necessarily be prejudicial to the reputation of an author.
However, I submit that no distortion or mutilation is involved. Under the Bill, such a review, it would seem, could be actionable. I have tried to compare the Berne convention and the Bill. The convention does not make distortion an alternative to prejudicing an author's reputation: it makes it a prerequisite. In Committee, my hon. Friend kindly said he would look further into this matter and wrote me a letter which he arranged to be placed in the Library. He said:
In our view, it is difficult to conceive of a distortion or mutilation of a work which would not be prejudicial to honour or reputation.
I do not disagree with that. My point is the other way around: something can certainly be prejudicial to an author without involving distortion or mutilation. The wording of clause 79(2)(b) is:
the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director.
In the Berne convention, that "or" is "and".
To overcome this problem, I have submitted two solutions. I hope my hon. Friend will consider at least one of them. Amendment 329 is the simpler of the two. It suggests inserting the word "unjustly" after "otherwise". Then there would be no doubt—if a review was unjustly prejudicial, it would be actionable. If it was not, it would not. Amendment No. 330 seeks to protect the position of people who are sued for derogatory treatment which the plaintiff may have deserved. That is a more complicated way of achieving what I propose. The word "unjustly" would, however, be simpler than legal retribution and indemnity. I hope my hon. Friend will consider such a simple amendment with favour.

Mr. Butcher: The issue is familiar, but my hon. Friend's amendments are fairly recent. In the time that we have had to consider the two amendments, we have concluded that they would limit the scope of the integrity right to an unacceptable extent and would undermine the principle on which it is based. Clause 79 confers the integrity right: it is the right of the author or film director not to have his or

her work subjected to derogatory treatment. The treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director.
Amendment No. 329 would limit this by providing that the treatment would have to be "unjustly" prejudicial to honour or reputation. Following on from this, amendment No. 330 provides that in an action for infringement where the court finds that the integrity right has been infringed, but that the treatment was not unjust, the defendant would have to pay the costs.
2 am
We are already introducing quite a complex provision, and it will not always be easy to tell whether the modification of a work amounts to derogatory treatment. It would be difficult, if not impossible, then to decide whether the treatment was justly or unjustly prejudicial to the author or film director's reputation.
The whole point of moral rights is to protect the author's artistic reputation, and if we allowed users, in modifying works, to prejudice the author's honour and reputation, there would be no point in having the integrity right. The amendment raises the question whether it is possible to have prejudice that is not unjust—surely all prejudice is unjust. Furthermore, the draconian measure suggested in amendment No. 330 would deter authors and film directors from suing for infringement, because, even if their integrity right was found to be infringed, they might end up having to pay the costs of the case.
We have already gone a long way towards meeting the legitimate concerns about moral rights of those who use copyright works. We have employee exceptions, and current events and newspaper exceptions. Those, together with the waiver provisions, give plenty of scope for mutually acceptable arrangements on moral rights to be reached. For those reasons, I must resist my hon. Friend's amendments.
My hon. Friend mentioned hostile reviews. The Bill prevents no one from expressing hostile opinions about a copyright work or from quoting extracts from it to support the argument. The work itself is not being distorted or mutilated in those circumstances. For that to be the case, the extracts chosen would have to be distorted so that they did not express what the author wrote.

Mr. Bowis: My hon. Friend's latter point was helpful in terms of establishing what is a distortion. In the light of his remarks, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

Clause97

UNDERTAKING TO TAKE LICENCE OF RIGHT IN INFRINGEMENT PROCEEDINGS

Amendment made: No. 166, in page 41, line 19, leave out from 'for' to 'shall' in line 20 and insert 'delivery up'. —[Mr. Butcher.]

Clause 98

RIGHT TO DELIVERY UP OF INFRINGING COPIES, &C.

Amendment made: No. 167, in page 41, line 26, leave out from 'work' to end of line 41 and insert


'may apply to the court for an order that the infringing copy or article be delivered up to him or to such other person as the court may direct.
(2) An application shall not be made after the end of the period specified in section(Period after which remedy of delivery up not available under Part I) (period after which remedy of delivery up not available); and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section(Order as to disposal of infringing copy or other article) (order as to disposal of infringing copy or other article)
(3) A person to whom an infringing copy or other article is delivered up in pursuance of an order under this section shall, if an order under section(Order as to disposal of infringing copy or other article) is not made, retain it pending the making of an order, or the decision not to make an order, under that section.
(4) Nothing in this section affects any other power of the court.'.—[Mr. Butcher.]

Clause 99

RIGHT TO SEIZE INFRINGING COPIES, &C.

Amendments made: No. 168, in page 41, line 42, leave out subsections (1) to (5) and insert—
'(1) An infringing copy of a work which is found exposed or otherwise immediately available for sale or hire, and in respect of which the copyright owner would be entitled to apply for an order under section 98, may be seized and detained by him or a person authorised by him.
The right to seize and detain is exercisable subject to the following conditions and is subject to any decision of the court under section(Order as to disposal of infringing copy or other article).
(2) Before anything is seized under this section notice of the time and place of the proposed seizure must be given to a local police station.
(3) A person may for the purpose of exercising the right conferred by this section enter premises to which the public have access but may not seize anything in the possession, custody or control of a person at a permanent or regular place of business of his, and may not use any force.
(4) At the time when anything is seized under this section there shall be left at the place where it was seized a notice in the prescribed form containing the prescribed particulars as to the person by whom or on whose authority the seizure is made and the grounds on which it is made.'.

No. 169, in page 42, line 25, leave out subsection (8) —[Mr. Butcher.]

Clause 100

EXCLUSIVE LICENSEE TO HAVE SAME RIGHTS AND REMEDIES AS COPYRIGHT OWNER

Amendment made: No. 170, in page 42, line 31, leave out subsections (2) and (3) and insert—
'(2) His rights and remedies are concurrent with those of the copyright owner; and references in the relevant provisions of this Part to the copyright owner shall be construed accordingly.'.—[Mr. Butcher.]

Clause 101

COPYRIGHT OWNER AND EXCLUSIVE LICENSEE TO BE JOINED AS PARTIES TO INFRINGEMENT ACTION

Amendments made: No. 172, in page 43, line 10, leave out This section does' and insert The above provisions do.

No. 171, in page 43, line 11, at end insert—
'(4) Where an action for infringement of copyright is bought which relates (wholly or partly) to an infringement in respect of which the copyright owner and an exclusive licensee have or had concurrent rights of action—


(a)the court shall in assessing damages take into account—

(i) the terms of the licence, and
(ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement:
(b)no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and
(c)the court shall if an account of profits is directed apportion the profits between them as the court considers just, subject to any agreement between them;
and these provisions apply whether or not the copyright owner and the exclusive licensee are both parties to the action.
(5) The copyright owner shall notify any exclusive licensee having concurrent rights before applying for an order under section 98 (order for delivery up) or exercising the right conferred by section 99 (right of seizure); and the court may on the application of the licensee make such order under section 98 or, as the case may be, prohibiting or permitting the exercise by the copyright owner of the right conferred by section 99, as it thinks fit having regard to the terms of the licence.'.—[Mr. Butcher.]

Clause 102

PECUNIARY REMEDIES WHERE CONCURRENT RIGHTS OF ACTION

Amendment made: No. 173, in page 43, line 12, leave out clause 102.—[Mr. Butcher.]

Clause 104

PRESUMPTIONS RELEVANT TO LITERARY, DRAMATIC, MUSICAL AND ARTISTIC WORKS

Amendment made: No. 63, in page 44, line 10, leave out from 'of to ', and' in line 12 and insert 'section 153 (qualification by reference to country of first publication)'.—[Mr. Butcher.]

Clause 105

PRESUMPTIONS RELEVANT TO SOUND RECORDINGS AND FILMS

Mr. Page: I beg to move amendment No. 269, in page 44, line 33, leave out 'to the public' and insert
'either to the public, or as issued for purposes of performance in public or being broadcast or included in a cable programme service,'.

Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 270, in page 44, line 34, leave out 'author or director of and insert 'owner of copyright in'.

Government amendment No. 280.

No. 271, in page 44, line 36, at end insert
', or

(c) that the film is protected by copyright in a specified country,'

Government amendments Nos. 64 and 281.

No. 272, in page 44, line 41, at end insert
'or in the case of a film before the date on which the copies were issued for purposes of performance in public or being broadcast or included in a cable programme service.'.

Government amendment No. 282.

Mr. Page: The amendments in the name of my hon. Friend the Member for Beaconsfield (Mr. Smith) are designed to strengthen the presumption of copyright ownership in relation to films. If I understand the Bill


correctly, it establishes certain presumptions with respect to sound recordings and films. The clause provides that a person named as the author or director on copies of a film issued to the public shall be presumed to be the author or director until the contrary is proved.
It also provides that, where copies bear the statement that the film was first published in a specified year or in a specified country, the statement shall be presumed to be correct until the contrary is proved. The statutory provisions go some way towards assisting copyright owners to bring film piracy cases to court by saving them the time and expense of proving the name of the author, the date of publication and the country of publication. Sometimes these three facts are not enough in themselves. Without proof, a piracy case will fail.
There are three gaps in the clause as it relates to films. The purpose of the amendments is to plug them, and thereby to ensure that the clause applies to every case of film piracy. The first gap is where the clause applies only when copies of films are issued to the public. That terminology includes the sale of video cassettes to the public, but it does not attach to copies of a film that are issued to cinemas for purposes of theatrical exhibition, which is how most feature films are first released. Nor does it attach to copies issued for showing on broadcast or cable television.
The second deficiency in the clause as it relates to films is that it establishes only a presumption of authorship at the date of issue. The second amendment overcomes that problem by substituting the term "owner of copyright", as used in the presumption relating to sound recording, in place of the phrase "author or director." The effect of the amendment is to place films in exactly the same position as sound recordings.
The third defect is that, while the presumption of publication in a specified year and country is usually sufficient to establish the subsistence of copyright in a published work, it is not sufficient in the case of an unpublished work. Therefore, the effect of the amendment will be to put unpublished films on precisely the same basis as published films. and sound recordings, both of which are entitled to a presumption of copyright subsistence under the clause as drafted, so long as they have been correctly issued.
The four amendments plug the three gaps. I shall be most interested to hear whether my hon. Friend the Minister is prepared to accept these amendments, which would make the prosecution of piracy cases very much easier.

Mr. Butcher: There has been much debate over the presumptions that should apply in civil proceedings for copyright infringement. We recognised that the Bill as introduced in another place went too far in providing that the court should presume generally that the plaintiff was the owner of copyright and that copyright subsisted in the work in question until evidence was produced to the contrary. We therefore dropped that clause from the Bill.
Those who have urged us to restore it have tended to brush aside the fact that the old clause tended to put the onus on the defendant to prove his absence of liability rather than on the plaintiff to establish his case. They have also tended to overlook the fact that clauses 104 and 105 make provision for evidence in copyright cases, which will greatly assist the copyright owner in establishing the critical questions of subsistence and ownership.
My hon. Friend the Member for Hertfordshire, South-West (Mr. Page) has spoken about the presumptions that apply. I readily concede that clause 105 needs to go further in order to assist in the fight against piracy. That is what motivated my amendments Nos. 280, 281 and 282. I believe there is common ground between us and I hope that he will feel able to withdraw his amendments in favour of those standing in the name of my right hon. and learned Friend.
The first deficiency in the existing presumptions is identified by my hon. Friend in amendment No. 269. In many cases, films remain unpublished, since copies are not issued to the public. Even in cases where copies are issued to the public in the form of videograms, this usually comes some time after cinema release and it is during the period before the issue of legitimate videos that the market for pirate videos is most bouyant. But if a pirate is caught, the existing presumption in clause 105 will not help. I believe the answer to this problem is as set out in amendment No. 282 rather than as in amendment No. 269.
I must also resist amendment No. 271. I do not think the courts should be asked to rely on a statement as to the subsistence or otherwise of copyright under a foreign law. We have rejected a presumption that United Kingdom copyright subsists in the film in question; it would be curious if we were to presume on the existence of foreign copyright, about which we can know little. In any event, such a presumption would rarely be relevant in a British court. Nevertheless, I believe my amendments will give my hon. Friend what he wants and I hope he can accept them.
As for amendment No. 64, we have come to recognise that the presumptions in clause 104 may not be ideally suited to computer programs. These are literary works, but their mode of exploitation is very different from books. The name of the author will normally appear on a book, but this is not normal practice in the case of a program. What is likely to appear is the name of the software house or company which owns copyright in the program and in this respect programs are more akin to sound recordings and films than they are to literary works.
Amendment No. 64 will provide the owners of copyright in computer programs with presumptions that are analogous to those which are applicable to records and videos. I believe that the various amendments we have tabled will be of considerable assistance, both to the rights owners in prosecution of cases against pirates and in reducing the burden on the courts.

Mr. Page: I thank my hon. Friend for his reply. As he correctly said, his amendments are fully superior to the ones that I have been advocating this evening, and go a long way to solving the problems that I have outlined. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 280, in page 44, line 34 leave out 'or' and insert—
'(aa) that a named person was the owner of copyright in the film at the date of issue of the copies, or'.

No. 64, in page 44, line 38, at end insert—
'(2A) In proceedings brought by virtue of this Chapter with respect to a computer program, where copies of the program are issued to the public in electronic form bearing a statement—

(a)that a named person was the owner of copyright in the program at the date of issue of the copies, or
(b)that the program was first published in a specified country or that copies of it were first issued to the public in electronic form in a specified year.


the statement shall be admissable as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.'

No. 281, in page 44, line 39, leave out These' and insert 'The above'.

No. 282, in page 44, line 41, at end insert—
'(4) In proceedings brought by virtue of this Chapter with respect to a film, where the film as shown in public, broadcast or included in a cable programme service bears a statement—

(a)that a named person was the author or director of the film, or
(b)that a named person was the owner of copyright in the film immediately after it was made.
the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.
This presumption applies equally in proceedings relating to an infringement alleged to have occurred before the date on which the film was shown in public, broadcast or included in a cable programme service.'.—[Mr. Butcher.]

Clause 108

FORFEITURE OF INFRINGING COPIES, &C.

Amendment made: No. 174, in page 46, line 1, leave out subsections (1) and (2) and insert—
'(1) The court before which proceedings are brought against a person for an offence under section 107 may, if satisfied that at the time of his arrest or charge—

(a) he had in his possession, custody or control in the course of a business an infringing copy of a copyright work, or
(b) he had in his possession, custody or control an article specifically designed or adapted for making copies of a particular copyright work, knowing or having reason to believe that it had been or was to be used to make infringing copies,
order that the infringing copy or article be delivered up to the copyright owner or to such other person as the court may direct.
(2) For this purpose a person shall be treated as charged with an offence—

(a) in England, Wales and Northern Ireland, when he is orally charged or is served with a summons or indictment;
(b)in Scotland, when he is cautioned, charged or served with a complaint or indictment.
(3) An order may be made by the court of its own motion or on the application of the prosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), and may be made whether or not the person is convicted of the offence, but shall not be made—

(a) after the end of the period specified in section(Period after which remedy of delivery up not available under Part I) (period after which remedy of delivery up not available), or
(b) if it appears to the court unlikely that any order will be made under section(Order as to disposal of infringing copy or other article) (order as to disposal of infringing copy or other article).'.—[Mr. Butcher.]

No. 175, in page 46, line 19, leave out subsection (4) and insert
'; and in Scotland, where an order has been made under this section, the person from whose possession, custody or control the infringing copy or article has been removed may, without prejudice to any other form of appeal under any rule of law, appeal against that order in the same manner as against sentence.'.

No. 176, in page 46, line 21, leave out subsection (5) and insert—
'(5) A person to whom an infringing copy or other article is delivered up in pursuance of an order under this section

shall retain it pending the making of an order, or the decision not to make an order, under section(Order as to disposal of infringing copy or other article).
(6) Nothing in this section affects the powers of the court under section 43 of the Powers of Criminal Courts Act 1973, section 223 or 436 of the Criminal Procedure (Scotland) Act 1975 or Article 7 of the Criminal Justice (Northern Ireland) Order 1980 (general provisions as to forfeiture in criminal proceedings).'.

No. 177, in page 48, line 14, leave out clause 113.—[Mr. Butcher.]

Clause 114

LICENSING SCHEMES AND LICENSING BODIES

Amendments made: No. 65, in page 49, line 24, after 'only', insert
'—
(a)'.

No. 66, in page 49, line 25, at end insert
',or
(b) works made by, or by employees of, or commissioned by, a single individual, firm, company or group of companies.
For this purpose a group of companies means a holding company and its subsidiaries, within the meaning of section 736 of the Companies Act 1985.'.—[Mr. Butcher.]

Clause 115

SCOPE OF GENERAL CONTROL OF LICENSING SCHEMES

Amendment made: No. 67, in page 49, line 27, leave out 'general control' and insert
'references and applications with respect to'.

Amendments made: No. 68, in page 49, line 44, leave out 'hiring' and insert 'rental'.

No. 69, in page 50, line 1, leave out subsection (2).—[Mr. Butcher.]

Clause 116

REFERENCE OF PROPOSED LICENSING SCHEME TO TRIBUNAL

Mr. Lawrence Cunliffe: I beg to move amendment No. 302, in page 50, line 17, at end insert—
'(5) ln the event that a proposed licensing scheme relates to the grant of copyright licences in any class of case in respect of which copyright licences have not previously been granted, then the operator of the proposed licensing scheme shall refer the proposed licensing scheme to the Copyright Tribunal and shall not seek to apply or implement any such proposed licensing scheme until the proceedings on the reference thereof are concluded.

(6)(a) In the event that the provisions of a proposed licensing scheme would constitute a variation or replacement of an existing licensing scheme then the operator of the proposed licensing scheme shall refer the proposed licensing scheme to the Copyright Tribunal and shall not seek to apply or implement any such proceedings on the reference thereof are concluded.
(b) Until the proceedings on the reference of any such proposed licensing scheme to the Tribunal have been concluded any such existing licensing scheme which would be varied, replaced or otherwise affected by the proposed licensing scheme shall remain in force.'

Madam Deputy Speaker (Miss Betty Boothroyd): With this it will be convenient to take amendment No. 303, in clause 117, page 50, line 18, after '(1)', insert
'Without prejudice to the provisions of section 116(5) and (6).'.

Mr. Cunliffe: I shall say only a few brief words on amendment No. 302 and reserve amendment No. 303 on commitment to the Minister. I understand that the Minister has some sympathy with this matter, and that he will lend support to this moderate measure which is clearly designed to assist political and charitable working men's clubs for ex-service men and others dedicated to non-profit-making principles.
I declare an interest in an association with some 6 million male and 4 million women members under the aegis of several associations. Obviously, we are concerned about various issues, including VAT on bingo and gaming machines, and the new Sunday licensing laws that discriminate against non-profit-making clubs. With great respect to the Government and the Minister, we hope that he will acknowledge that our interest is genuine and sincere and that, ultimately, there is a great deal of British social interest in the society that we cater for in the organisations that I have described. I commend to the Minister's discretion amendments Nos. 302 and 303.

Mr. Butcher: What I am about to say is not a symptom of being demob-happy, but a symptom of a late reading of the amendment tabled by the hon. Member for Leigh (Mr. Cunliffe). I thank him for the way in which he moved the amendment, with the support of my hon. Friends who have spoken to me about it.
We are in a rather unorthodox position, in that I am fairly sure that the first two thirds of the hon. Gentleman's amendment—subsections (5) and (6)—are probably defective. However, what he wishes to deliver—I believe on an all-party basis—is what is contained in subsection 6(b). On that basis we knowingly accept the defective amendment in the knowledge that we need to consult without commitment on paragraph (b) and what it implies. I can give the hon. Gentleman the undertaking that amendment No. 302 will be sent to another place, which will be charged with a drafting requirement, subject to prior consultations with the other interested parties.
I hope thatHansard will accurately convey what I am trying to say to the hon. Gentleman. I think that he understands the gist of it. I thank the clubs that have made representations on an all-party basis and I thank the hon. Gentleman for bringing this to our attention. It was rather late in the day and, on the consideration I have been able to give at this late stage, I hope that what I have suggested will satisfy him.

Mr. Greg Knight: I hope and believe that the non-profit-making clubs organisations will welcome wholeheartedly the undertaking that my hon. Friend the Minister has given to the House. I hope, in the same spirit, that Opposition Members will agree that the House can accept amendment No. 302 without a Division and that the hon. Member for Leigh (Mr. Cunliffe) will not press amendment No. 303.

Mr. Blair: We are grateful to the Minister for the indication he has given. We all recognise the tremendous importance of the clubs and the contribution they make to British society. We accept that there may be drafting difficulties, but I am sure that they can be ironed out at a later stage. The important thing is that the principle is

accepted and I know that my hon. Friend the Member for Leigh (Mr. Cunliffe) will be grateful to the Minister for that.

Amendment agreed to.

Clause 120

APPLICATION FOR REVIEW OF ORDER AS TO ENTITLEMENT TO LICENCE

Amendments made: No. 70, in page 51, line 47, leave out from 'scheme' to end of line 2 on page 52.

No. 71, in page 52, line 5, leave out subsection (2) and insert—
'(2) An application shall not be made, except with the special leave of the Tribunal—
(a) within twelve months from the date of the order or of the decision on a previous application under this section, or
(b) if the order was made so as to be in force for 15 months or less, or as a result of the decision on a previous application under this section is due to expire within 15 months of that decision, until the last three months before the expiry date.'.

No. 72, in page 52, line 10, leave out from 'review' to end of line 13 and insert
'confirm or vary its order as the Tribunal may determine to be reasonable having regard to the terms applicable in accordance with the licensing scheme or, as the case may be, the circumstances of the case.'.—[Mr. Butcher.]

Clause 121

EFFECT OF ORDER OF TRIBUNAL AS TO LICENSING SCHEME

Amendment made: No. 73, in page 53, line 1, leave out subsection (5).—[Mr. Butcher.]

Clause 122

SCOPE OF GENERAL CONTROL OF LICENCES GRANTED BY LICENSING BODIES

Amendment made: No. 74, in page 53, line 4, leave out
'general control of licences granted'
and insert
'references and applications with respect to licensing'.

No. 75, in page 53, line 14, leave out 'or'.

No. 76, in page 53, line 18, at end insert
'; and

(c) all licences in relation to the copyright in sound recordings, films or computer programs so far as they relate to the rental of copies to the public;'.—[Mr. Butcher.]

Clause 124

REFERENCE TO TRIBUNAL OF TERMS OF EXISTING LICENCE

Amendments made: No. 77, in page 53, line 32, leave out subsections (1) and (2) and insert—
'(1) A licensee under a licence which is due to expire, by effluxion of time or as a result of notice given by the licensing body, may apply to the Copyright Tribunal on the ground that it is unreasonable in the circumstances that the licence should cease to be in force. 
(2) Such an application may not be made until the last three months before the licence is due to expire.'.

No. 78, in page 53, line 39, at end insert—
'(3A) If the Tribunal finds the application well-founded, it shall make an order declaring that the licensee shall continue


to be entitled to the benefit of the licence on such terms as the Tribunal may determine to be reasonable in the circumstances.'.—[Mr. Butcher.]

Clause 125

FURTHER REFERENCE OF TERMS OF LICENCE

Amendment made: No. 79, in page 53, line 42, leave out Clause 125—[Mr. Butcher.]

Clause 126

EFFECT OF ORDER OF TRIBUNAL AS TO TERM OF LICENCE

Amendment made:

No. 80, in page 54, line 15, leave out Clause 126.—[Mr. Butcher.]

Clause 127

GENERAL CONSIDERATIONS: UNREASONABLE DISCRIMINATION

Amendment made: No. 81, in page 54, line 41, leave out 'those other persons' and insert
'licensees under other schemes operated by, or other licences granted by, the same person'.—[Mr. Butcher.]

Clause 131

LICENCES TO REFLECT PAYMENTS IN RESPECT OF UNDERLYING RIGHTS

Amendment made: No. 82, in page 55, line 38, leave out 'hiring to the public' and insert
'the rental to the public of'.—[Mr. Butcher.]

Clause 131

LICENCES TO REFLECT PAYMENTS IN RESPECT OF UNDERLYING RIGHTS

Amendment made: No. 334, in page 55, line 40, after 'royalty', insert 'or other sum payable'.—[Mr. Butcher.]

Clause 135

POWER TO EXTEND COVERAGE OF SCHEME OR LICENCE

Amendments made: No. 83, in page 57, line 32, leave out
'general control of licensing schemes'
and insert 'see section 115'.

No. 84, in page 57, line 35, leave out from 'apply' to end of line 36 and insert '(see section 122),'.—[Mr. Butcher.]

Clause 139

STATUTORY LICENCE WHERE RECOMMENDATION NOT IMPLEMENTED

Amendments made: No. 204, in page 61, line 7, after 'hire', insert' or'.

No. 205, in page 61, line 7, leave out 'or distributed'. —[Mr. Butcher.]

Clause 140

ROYALTY FOR HIRING OF SOUND RECORDING, FILM OR COMPUTER PROGRAM

Amendments made: No. 85, in page 61, line 19, leave out 'rate of royalty' and insert 'royalty or other sum'.

No. 86, in page 61, line 20, leave out 'hiring' and insert 'rental'.—[Mr. Butcher.]

Clause 141

CERTIFICATION OF LICENSING SCHEMES

Amendments made: No. 87, in page 61, line 42, leave out 'hiring' and insert 'rental'.

No. 88, in page 62, line 5, leave out
'clearly identifies the works to which it relates'
and insert
'enables the works to which it relates to be identified with sufficient certainty by persons likely to require licences'.—[Mr. Butcher.]

Clause 142

POWERS EXERCISABLE IN CONSEQUENCE OF REPORT OF MONOPOLIES AND MERGERS COMMISSION

Mr. Fisher: I beg to move amendment No. 17, in page 62, line 39, at end insert
'but such powers shall in no case be exercisable where to do so would contravene Article 9(1) of the Berne Convention (Paris Revision 1971).'.

Madam Deputy Speaker: With this it will be convenient to take Government amendment No. 283.

Mr. Fisher: Amendment 17 would amend clause 142 to reconcile it with the Berne convention. At this late hour—or early hour—I shall not weary the House with a detailed submission. The Minister and his Department have received several opinions from the BBC. I have a substantial and fat opinion from Mr. Ian Brownlie QC, another from Mr. Hugh Laddie QC, and two more from Mr. E. P. Skone James. Together they present a formidable case that I understand that the Minister has already studied in great detail. He has taken all the finer points of those legal gentlemen's opinions.
In brief, they say that clauses 142 and 97 are in conflict with the Berne convention and that, if clause 142 is enacted, it will prevent the United Kingdom from adhering to the Paris revision of Berne. I understand that the Government's view is that there is a potential conflict between Berne and the public interest. We certainly believe that that may not be the case and that the Berne convention takes account of public interest.
We are convinced by the weighty documentation that has been given to us by the BBC and counsel's opinions, and believe that the only way to reconcile the matter is to amend clause 142 in the way that the amendment provides.

Mr. Butcher: Amendments Nos. 17 and 283 are intended to ensure that the powers in clause 142 should not be exercised in contravention of the United Kingdom's international copyright obligations. However, Government amendment No. 283 is considerably more comprehensive in regard to the obligations to be met. Therefore, I hope that the hon. Gentleman will be willing to withdraw amendment No. 17 on the basis that our amendment is more comprehensive.

Mr. Fisher: I am delighted that the learned opinions have convinced the Government so comprehensively. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 283, in page 62, line 42, at end insert—


'(2A) A Minister shall only exercise the powers available by virtue of this section if he is satisfied that to do so does not contravene any Convention relating to copyright to which the United Kingdom is a party.'.—[Mr. Butcher.]

Clause 147

JURISDICTION OF THE TRIBUNAL

Amendment made: No. 89, in page 64, line 37, leave out from 'proceedings' to end of line 2 on page 65 and insert 'under—

(a) section 116, 117 or 118 (reference of licensing scheme),
(b) section 119 or 120 (application with respect to entitlement to licence under licensing scheme),
(c) section 123, 124 or(Application for review of order as to licence) (reference or application with respect to licensing body),
(d) section 137 (appeal against order as to coverage of licensing scheme or licence),
(e) section 140 (application to settle royalty or other sum payable for rental of sound recording, film or computer program),
(f) section 142(3) (application to settle terms of copyright licence available as of right),
(g) section 185 (application to give consent for purposes of Part II on behalf of performer),
(h) paragraph 5 of Schedule 6 (determination of royalty or other remuneration to be paid to trustees for the Hospital for Sick Children).'.—[Mr. Butcher.]

Clause 149

COSTS, PROOF OF ORDERS, &C.

Mr. Michael Colvin: I beg to move amendment No. 239, in page 65, line 32, leave out subsection (1) and insert—
'(1) The Copyright Tribunal may not order that the costs of a party to proceedings before it shall be paid by any other party.'.

Madam Deputy Speaker: With this it will be convenient to take the following amendments: No. 241, in page 65, line 32, leave out subsection (1) and insert—
'(1) If the Copyright Tribunal considers that a party to proceedings before it has behaved unreasonably it may order that that party shall bear the whole, or such part as may be specified in the order, of the costs of any other party to those proceedings; and in that case the Tribunal may tax or settle the amount of the costs, or direct in what manner they are to be taxed; but in no other case may an order in respect of costs be made.'.

No. 240, in page 65, line 33, after 'proceedings before it', insert
'(other than those of a licensing body).'.

Mr. Colvin: At this hour of the morning, I shall not take long in moving amendment No. 239, but I shall speak to amendments Nos. 240 and 241. They relate to clause 149 and the same subject, the costs involved in appearing before copyright tribunals for trade associations representing pubs and clubs, which are the National Licensed Victuallers Association in the case of public houses, and the Committee of Registered Clubs Associations—CORCA—in the case of clubs.
I declare an interest as a licensee, although I must say that mine is a silent pub; there is no piped music. I always insist on drinking my beer in peace. I am also an adviser to the NLVA.
The House will know that from time to time, fees for the licence to play music in pubs and clubs are negotiated between the trade associations and the Performing Rights

Society, the PRS. We have appreciated that, at times, the PRS can be extremely heavy-handed. For example, it recently tried to lay down a new club tariff that made no distinction between the profit-making disco type of club and the non-profit-making club such as the British Legion. Following an outcry and some powerful lobbying by CORCA, the increase for non-profit-making clubs has been limited to only 100 per cent. CORCA can be tough in its negotiations.
With some justification, it is felt that the negotiations can be a little one-sided. If a matter is taken to the copyright tribunal, it is often costly for the loser, not just in terms of the new fees but costs. A trade association might try to reduce its costs by appointing a solicitor to represent it, but the PRS, which enjoys substantial resources, can field leading, and sometimes extremely expensive, counsel. The association might have costs awarded against it, so under the present system, and that which is proposed in the Bill, appeals are discouraged. Surely that is not just.
My amendments would give some protection against heavy costs being awarded against an unsuccessful appellant. I could commend any of the three amendments to the House, but I moved No. 239 because it seemed to be the best, being a compromise between amendments Nos. 240 and 241.
In effect, amendment No. 239 provides that in proceedings before the copyright tribunal, each party should pay its own costs in all circumstances. The House will appreciate that that is a proposition that can cut both ways. If a trade association were to succeed in proceedings before the tribunal, however handsomely, it would have to bear its own costs.

Mr. Blair: I am following the hon. Gentleman's argument closely. I should like to know the present practice of the copyright tribunal. Does it make costs follow the event in the cases that he is describing—in other words, if a party loses, does it automatically pay the costs—or does it exercise discretion?

Mr. Colvin: I believe that it operates on a discretionary basis. I want a provision written into the Bill to ensure that all the costs cannot be awarded against the appellant in some cases.
Amendment No. 240 is throughout one-sided, in that it would ensure that a licensing body had always to pay its own costs while leaving the tribunal free to order that such a body should pay the costs of other parties as well. That may seem a bit steep, but it is not when we bear in mind the position of the licensing body—in this instance the PRS—that is responsible for forming and operating the licensing schemes.
Amendment No. 241 is a qualified version of amendment No. 239. It sets out to ensure that the tribunal should not cast the costs of any party upon another party unless it considers that the other party has behaved unreasonably.
Other amendments could be devised to give similar protection against the awarding of costs. Of the three amendments which I have tabled, I believe that No. 239 comes closest to that which is required. I consider it to be modest, sensible and just, and I hope that my hon. Friend the Minister will accept it.

Mr. Butcher: The amendments seek to limit in varying degrees the power of the copyright tribunal to order that


the costs of one of the parties to proceedings before it should be paid by the other. This power is already given to the performing right tribunal by paragraph 5 of schedule 4 to the Copyright Act 1956. Of course it would be wrong if the tribunal used it unfairly or so as to deter parties with a legitimate case from bringing proceedings, but there is no evidence at all that the performing right tribunal has acted in this way or that the copyright tribunal would be likely to do so.
On the contrary, I understand that orders as to costs are made by the performing right tribunal extremely rarely. In the limited time available since my hon. Friend the Member for Romsey and Waterside (Mr. Colvin) tabled his amendments, we have been able to identify only one such case in recent years, where the originators were considered to have persisted with an application that was wholly misconceived after this fact had been made clear to them. Even in that instance the originators were asked to contribute only £250 towards the costs of the other party. Moreover, in making the award the tribunal specifically drew attention to the importance
that individual applicants should not be deterred from applying to it by apprehension of the possibility that very substantial costs might be awarded against them".
The power in clause 149(1) is discretionary only and I am confident that the copyright tribunal can be trusted not to abuse it. The record shows that that is exercised only in exceptional circumstances, and I believe that that will continue to be the case. I see no reason to deprive the tribunal of this power, or to limit it in the ways provided by amendments Nos. 240 or 241. The possibility of frivolous and time-wasting applications or references occurring from time to time cannot be ruled out, and the power to make an order for costs in those circumstances is important. The provisions in the Bill regarding the copyright tribunal have been scrutinised by the Council on Tribunals and it has raised no objection to this provision.
My hon. Friend hoped that I would be able to agree to the amendments. Regrettably, I cannot, and I hope that he will withdraw them for the reasons that I have given.

Mr. Colvin: With the leave of the House, I shall withdraw the amendments because the remarks of my hon. Friend the Minister have reassured me.
I noted that the powers are already available in legislation and that orders for costs are rare in practice; I hope that that will continue. My hon. Friend the Minister obviously places much trust in the tribunal's activities, but, if things go wrong, I trust that he and his successor will keep a careful watch on matters. I notice that, on the same page as clause 149, clause 148 relates to the general powers of the Lord Chancellor to make rules in respect of the activities of the Copyright Tribunal. There is power to use secondary legislation under the statutory instrument procedure to make rules to govern the operation of the tribunal. Given that those reserve powers are available to the Government, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 150

APPEAL TO THE COURT ON POINT OF LAW

Amendments made: No. 90, in page 66, line 13, leave out subsection (4).—[Mr. Butcher.]

Clause 151

QUALIFICATTON FOR COPYRIGHT PROTECTION

No. 254, in page 66, line 27, leave out 'and 161' and insert
'(Copyright in Acts and Measures), 161 and(Copyright in Parliamentary Bills)'.—[Mr. Butcher.]

Clause 155

COUNTRIES TO WHICH THIS PART EXTENDS

Amendment proposed: No. 91, in page 68, line 31, leave out subsection (5).—[Mr. Butcher.]

Madam Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 92,101,129 and 136.

Mr. Blair: I should like a word of explanation, because clause 155 is important as it declares the jurisdiction, extent and application of this part of the Bill.
I am not entirely sure what are the effects of the amendments, but if they are to extend or limit the territorial application of the Bill, we should be told.

Mr. Butcher: The hon. Gentleman is correct.
The five amendments together make three technical changes to the provisions in the Bill about extension of its effect to dependent terrorities.
Clause 155 provides for the extent of part I of the Bill. Orders in Council may be made to extend the part to the Channel Islands, the Isle of Man or any colony. In a sort of mirror-image provision, paragraph 36(3) of schedule 1 provides for Orders in Council to repeal the extension of existing copyright law to the Channel Islands or the Isle of Man if they introduce their own copyright laws, as the Isle of Man is doing. In both cases, the orders are subject to the negative resolution procedure. The use of this procedure would be contrary to the principle that an Order in Council extending an Act of Parliament to a dependent territory is not subject to' parliamentary scrutiny. Amendments Nos. 91 and 136 therefore leave out the provision for the negative resolution procedure in those cases, thus bringing clause 155 and schedule 1 into line with clause 245, which deals with the extension of part 3 to dependent territories. I hope that that is a sufficient explanation for the hon. Gentleman.

Mr. Rowlands: I was pleased to hear the Minister use the words "dependent territories," as I tried to move an amendment to the effect that that was the appropriate term. The Minister told me that it would require such immense legislative changes that he could not accept the amendment.
Secondly, I ask the Minister the time scale in which he will implement this legislation. The Lego case—[Interruption.] My hon. Friend the Member for Aberdeen, South (Mr. Doran) throws his hands up in horror because I have referred to the Lego case again. It was some years after the Lego case that the copyright legislation was applied to Hong Kong. Will there be a long time lapse between the implementation of the legislation domestically


and its application to dependent territories? It was in some of the dependent territories that battles were fought over design and copyright. The Minister will remember that it was in a dependent territory that the Lego battle was initially fought. It was the application of the legislation to dependent territories which led to that case.
It would be useful if the Minister could give some idea of the speed or lack of speed with which the Bill will be applied to dependent territories. That can have profound effects on the copyright rights of companies if those cases are taken up in dependent territories.

Mr. Butcher: It is, of course, up to the Governments of the independent territories to decide when the Bill should be extended, and it is not for us.

Amendment agreed to.

Clause 160

CROWN COPYRIGHT

Amendments made: No. 225, in page 71, line 10, at end insert 'calendar'.

No. 256, in page 71, line 19, leave out from 'that,' to end of line 20 and insert
'Parliamentary copyright subsists in the work (see sections 161 and(Copyright in Parliamentary Bills)).'.—[Mr. Butcher.]

Clause 161

PARLIAMENTARY COPYRIGHT

Amendment made: No. 92, in page 72, line 12, leave out
'the provisions of this Part extend'
and insert 'this Part extends'.—[Mr. Butcher.]

Clause 166

RIGHTS AND PRIVILEGES UNDER OTHER ENACTMENTS OR THE COMMON LAW

Amendment made: No. 257, in page 74, line 26, at end insert—
'(5) The savings in subsection (1) have effect subject to section(Copyright in Acts and Measures) (4) and section(Copyright in Parliamentary Bills) (7) (copyright in Acts, Measures and Bills: exclusion of other rights in the nature of copyright).'.—|Mr. Butcher.]

Clause 167

GENERAL PROVISIONS AS TO CONSTRUCTION

Amendment made: No. 178, in page 74, line 34, leave out 'such'.—[Mr. Butcher.]

Clause 170

MEANING OF PUBLICATION AND COMMERCIAL PUBLICATION

Mr. Page: I beg to move amendment No. 273, in page 76, line 39, at end insert—
'(7) In the case of a film, and notwithstanding subsection (4)(c) of this section, the issue of copies of the film for purposes of performance in public, or being broadcast or included in a cable programme service, constitutes publication.'.
Amendment No. 273 adds to the definition of publication the release of a film for purposes of theatrical, broadcast or cable performances. At the moment, publication is defined as issue of copies to the public and

expressly excludes broadcasting or cable casting of a film from the definition. That has two consequences. First, a film that has been the subject of a theatrical release in the cinema or a first run showing on broadcast or cable television may not be considered a public work. I could be wrong in my reading of that, and I should be grateful if my hon. Friend could reassure me. However, if I am right, it would appear that only the sale of video cassettes to the public satisfies the definition of publication.
Secondly, a foreign film that has only been shown in cinemas or broadcasts or on cable television in a foreign country is not eligible for copyright protection in the United Kingdom unless the copyright owner can prove that the author was a national of a country with which the United Kingdom had a copyright treaty at the relevant time
By contrast, in the case of a published work, eligibility for copyright protection in the United Kingdom can be established more easily by showing that the work was first published in a country with which the United Kingdom had copyright treaty relations at the time of the first publication.
Those rules place the owner of copyright in a foreign film at a significant disadvantage if he wishes to enforce those rights in an English court before the film has been published within the meaning of the Bill. The proof of nationality of the author is much more difficult and costly than trying to prove the place of the first theatrical or television release. I leave aside the difficulties of trying to prove the nationality of an author who is a production company incorporated in a country that may not meet the nationality requirements.
I believe that the amendment overcomes those difficulties. It provides for the publication of films and it includes the issue of copies of the film for purposes of performance in public or being broadcast or included in a cable service. I hope that my hon. Friend will be able to reassure me that I am misreading the definitions, or that he will be able to accept the amendment.

Mr. Butcher: I am grateful to my hon. Friend for his explanation, as his amendment puzzled us considerably. I must tell him that the amendment is largely unnecessary, even in terms of its own objectives. Under subsection (l)(a) of the clause, the issue of copies of a film to the public, for whatever purpose, already constitutes publication, so the amendment is relevant only to the extent that the "group of persons" it refers to is not a sector of the public. That means that the effect of the amendment would be limited to cases where a copy of a film is issued to a group which does not constitute the public, but where the objective is nonetheless to give a public performance. That seems a very limited set of circumstances.
I find the amendment enigmatic because my hon. Friend seems to be trying to make publication not a restricted act. Virtually all that is achieved by providing that in particular circumstances the issue of copies of a film constitutes publication is to ensure that the term of copyright starts to run from that date because, under clause 13, the term of copyright in a film expires 50 years from the end of the calendar year in which the film is released, and "released" includes when it is first published.
I hope that my hon. Friend therefore accepts that the amendment is not entirely necessary.

Mr. Page: I am grateful to my hon. Friend for his explanation. I have some difficulty with the definition of what will be accepted as a publication, particularly as, for some reason, the clause goes out of its way to exclude
the broadcasting of the work or its inclusion in a cable programme service
in subsection (4)(iv).
In view of my hon. Friend's assurance, however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 173

MINOR DEFINITIONS

Amendments made: No. 93, in page 77, line 29, leave out 'a'.

No. 94, in page 78, line 3, leave out 'means' and insert 'includes'.

No. 95, in page 78, line 4, leave out from 'having' to end of line 5 and insert 'authority to decide any matter affecting a person's legal rights or liabilities'.

No. 96, in page 78, line 7, at end insert—
'"rental" means any arrangement under which a copy of a work is made available—

(a) for payment (in money or money's worth), or
(b)in the course of a business, as part of services or amenities for which payment is made,
on terms that it will or may be returned;'.—[Mr. Butcher.]

Clause 174

INDEX OF DEFINED EXPRESSIONS

Amendments made: No. 179, in page 79, line 32, column 2, leave out 'Section 168' and insert 'Sections 100(2) and 168'.

No. 258, in page 79, line 37, column 2, leave out 'section 160(2)' and insert
'sections 160(2) and(Copyright in Acts and Measures) (3)'.

No. 259, in page 80, line 39, at end insert
'and(Copyright in Parliamentary Bills)' (6).

No. 97, in page 80, line 55, at end insert—
'rental section 173'.—[Mr.Butcher]

Clause 190

RIGHT TO DELIVERY UP OF ILLICIT RECORDINGS

Amendment made: No. 180, in page 86, line 18, leave out from 'Part' to end of line 24 and insert
'may apply to the court for an order that the recording be delivered up to him or to such other person as the court may direct.
(2) An application shall not be made after the end of the period specified in section(Period after which remedy of delivery up not available under Part II); and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, on order under section (Order as to disposal of illicit recording)(order as to disposal of illicit recording).
(3) A person to whom a recording is delivered up in pursuance of an order under this section shall, if an order under section(Order as to disposal of illicit recording) is not made, retain it pending the making of an order, or the decision not to make an order, under that section.
(4) Nothing in this section affects any other power of the court.'.—[Mr. Butcher.]

Clause 191

RIGHT TO SEIZE ILLICIT RECORDINGS

Amendments made: No. 181, in page 86, line 25, leave out subsection (1) to (5) and insert—
'(1) An illicit recording of a performance which is found exposed or otherwise immediately available for sale or hire, and in respect of which a person would be entitled to apply for an order under section 190, may be seized and detained by him or a person authorised by him. 
The right to seize and detain is exercisable subject to the following conditions and is subject to any decision of the court under section(Order as to disposal of illicit recording) (order as to disposal of illicit recording).
(2) Before anything is seized under this section notice of the time and place of the proposed seizure must be given to a local police station. 
(3) A person may for the purpose of exercising the right conferred by this section enter premises to which the public have access but may not seize anything in the possession, custody or control of a person at a permanent or regular place of business of his and may not use any force. 
(4) At the time when anything is seized under this section there shall be left at the place where it was seized a notice in the prescribed form containing the prescribed particulars as to the person by whom or on whose authority the seizure is made and the grounds on which it is made.'.

No. 182, in page 87, line 8, leave out subsection (8).—[Mr. Butcher.]

Clause 192

MEANING OF "ILLICIT RECORDING"

Amendments made: No. 183, in page 87, line 20, leave out 'criminal liability and forfeiture' and insert
'offences and orders for delivery up in criminal'.

No. 184, in page 87, line 29, at end insert
'paragraph 12(2) (recordings of performance in electronic form retained on transfer of principal recording),'.—[Mr. Butcher.]

Clause 194

FORFEITURE OF ILLICIT RECORDINGS

Amendments made: No. 185, in page 88, line 37, leave out subsections (1) and (2) and insert—
'(1) The court before which proceedings are brought against a person for an offence under section 193 may, if satisfied that at the time of his arrest or charge he had in his possession, custody or control in the course of a business an illicit recording of a performance, order that it be delivered up to a person having performers' rights or recording rights in relation to the performance or to such other person as the court may direct. 
(2) For this purpose a person shall be treated as charged with an offence—

(a) in England, Wales and Northern Ireland, when he is orally charged or is served with a summons or indictment;
(b)in Scotland, when he is cautioned, charged or served with a complaint or indictment.
(3) An order may be made by the court of its own motion or on the application of the prosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), and may be made whether or not the person is convicted of the offence, but shall not be made—

(a)after the end of the period specified in section(Period after which remedy of delivery up not available under Part II) (period after which remedy of delivery up not available), or
(b)if it appears to the court unlikely that any order will be made under section(Order as to disposal of illicit recording) (order as to disposal of illicit recording).'.

No. 186, in page 89, line 2, leave out subsection (4) and insert


'; and in Scotland, where an order has been made under this section, the person from whose possession, custody or control the illicit recording has been removed may, without prejudice to any other form of appeal under any rule of law, appeal against that order in the same manner as against sentence.'.

No. 187, in page 89, line 4, leave out subsection (5) and insert—
'(5) A person to whom an illicit recording is delivered up in pursuance of an order under this section shall retain it pending the making of an order, or the decision not to make an order, under section(Order as to disposal of illicit recording). 
(6) Nothing in this section affects the powers of the court under section 43 of the Powers of Criminal Courts Act 1973, section 223 or 436 of the Criminal Procedure (Scotland) Act 1975 or Article 7 of the Criminal Justice (Northern Ireland) Order 1980 (general provisions as to forfeiture in criminal proceedings).'.—[Mr. Butcher.]

Clause 198

SUPPLEMENTARY PROVISIONS WITH RESPECT TO FORFEITURE ORDERS

Amendment made: No. 188, in page 89, line 43, leave out clause 198.—[Mr. Butcher.]

Clause 222

RIGHT TO DELIVERY UP OF INFRINGING ARTICLES, &C

Amendment made: No. 189, in page 99, line 8, leave out from 'question' to end of line 13 and insert
'may apply to the court for an order that the infringing article or other thing be delivered up to him or to such other person as the court may direct.
(2) An application shall not be made after the end of the period specified in the following provisions of this section; and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section(Order as to disposal of infringing article, &amp;c).
(3) An application for an order under this section may not be made after the end of the period of six years from the date on which the article or thing in question was made, subject to subsection (4). 
(4) If during the whole or any part of that period the design right owner—

(a)is under a disability, or
(b)is prevented by fraud or concealment from discovering the facts entitling him to apply for an order,
an application may be made at any time before the end of the period of six years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts. 
(5) In subsection (4) "disability"—

(a)in England and Wales, has the same meaning as in the Limitation Act;
(b)in Scotland, means legal disability within the meaning of the Prescription and Limitation (Scotland) Act 1973;
(c)in Northern Ireland, has the same meaning as in the Statute of Limitations (Northern Ireland) 1958.
(6) A person to whom an infringing article or other thing is delivered up in pursuance of an order under this section shall, if an order under section(Order as to disposal of infringing article, &amp;c.)is not made, retain it pending the making of an order, or the decision not to make an order, under that section. 
(7) Nothing in this section affects any other power of the court.'.—[Mr. Butcher.]

Clause 223

SUPPLEMENTARY PROVISIONS WITH RESPECT TO FORFEITURE ORDERS

Amendment made: No. 190, in page 99, line 14, leave out clause 223.—[Mr. Butcher.]

Clause 225

RIGHTS AND REMEDIES OF EXCLUSIVE LICENSEE

Amendment made: No. 191, in page 100, line 19, leave out subsections (2) to (4) and insert—
'(2) His rights and remedies are concurrent with those of the design right owner; and references in the relevant provisions of this Part to the design right owner shall be construed accordingly.'.—[Mr. Butcher.]

Clause 226

PROVISIONS WITH RESPECT TO CONCURRENT RIGHTS OF ACTION

Amendment made: No. 192, in page 101, line 8, at end insert—
'(5) The design right owner shall notify any exclusive licensee having concurrent rights before applying for an order under section 222 (order for delivery up of infringing article, &amp;c); and the court may on the application of the licensee make such order under that section as it thinks fit having regard to the terms of the licence.'.—[Mr. Butcher.]

Clause 228

LICENCES AVAILABLE IN LAST FIVE YEARS OF DEISIGN RIGHT

Amendment made: No. 98, in page 101, line 18, leave out 'any act' and insert 'anything.—[Mr. Butcher.]

Clause 230

UNDERTAKING TO TAKE LICENCE OF RIGHT IN INFRINGEMENT PROCEEDINGS

Amendment made: No. 193, in page 102, line 19, leave out
'the forfeiture of any articles'
and insert 'delivery up'.—[Mr. Butcher.]

Clause 231

CROWN USE OF DESIGNS

Amendment made: No. 99, in page 102, line 44, leave out from 'realm' to 'or' in line 46 and insert
', in pursuance of an agreement or arrangement to which the government of that country and Her Majesty's Government in the United Kingdom are parties;'.—[Mr. Maude.]

Clause 242

REFERENCE OF DISPUTES RELATING TO CROWN USE

Amendments made: No. 335, in page 108, line 28, leave out 'or'.

No. 336, in page 108, line 29, at end insert
', or
(c) section (Crown use of design right: compensation for loss of profit) (Crown use: compensation for loss of profit),'.

No. 100, in page 109, line 15, leave out 'a' and insert 'any'.—[Mr. Maude.]

Clause 245

COUNTRIES TO WHICH THIS PART EXTENDS

Amendment made: No 101, in page 110, line 26, at end insert—
'(5) Where a country to which this Part extends ceases to be a colony of the United Kingdom, it shall continue to be treated as such a country for the purposes of this Part until

(a) an Order in Council is made under section 246 designating it as a country enjoying reciprocal protection, or
(b) an Order in Council is made declaring that it shall cease to be so treated by reason of the fact that the provisions of this Part as part of the law of that country have been amended or repealed.
(6) A statutory instrument containing an Order in Council under subsection (5)(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.'. —[Mr. Maude]

Clause 253

MINOR DEFINITIONS

Amendment made: No. 102, in page 112, line 11, leave out 'a'.—[Mr. Maude.]

Clause 254

INDEX OF DEFINED EXPRESSIONS

Amendments made: No. 194,in page 113,line l, column
2, leave out 'Section 248' and insert 'Section 225(2) and 248'.

No. 337, in page 113, line 5, at end insert
'government department concerned (in section 231(5) relation to Crown use)'.—[Mr. Maude.]

Clause 255

REGISTRABLE DESIGNS

Mr. Rowlands: I beg to move amendment No. 326, in page 113, line 26, after 'eye', insert
'of persons acquiring or using the article'.

Madam Deputy Speaker: With this, it will be convenient to discuss the following: Amendment No. 325, in page 113, line 41, leave out subsection (3).

Government amendment No. 103.

Mr. Rowlands: Important issues arise from my amendment. The Minister will recall that we covered this course and discussed this issue in Committee on 16 June when we discussed what was required to attract registered design right. The Minister stated that the Government wanted to
ensure that purely functional designs do not qualify for the longer and stronger protection given by the Registered Designs Act 1949".—[Official Report, Standing Committee E, 16 June 1988; c. 621.]
Then, he stated that we had to show that not only were the articles that would attract registered design aesthetically pleasing in themselves, but that they made an impact on the purchaser. We had a considerable discussion about the basis on which one could decide how to define whether a purchaser had bought an article on the grounds of the attraction of its design. That is what new section 1(3) attempts to do.
The clause meets the problem of whether a purely functional design could attract a registered design right. That is barred in subsection (l)(b)(i) of the new section 1 in clause 255. Therefore, there is no problem on that front, as we have already covered ourselves on that. However, it is possible that a problem will arise in connection with subsection (3) of clause 255.
I understand from the advice that I have received that under the law as it stands, the court must have regard to the eye of the customer when deciding whether an article attracts a registered design right. It was in the case of Amp v. Utilex in 1972 that that principle was established. Therefore, the idea that one must go beyond the aesthetic appeal and prove and demonstrate that the design would attract the purchaser in such a way as to qualify for a registered design right, is already enshrined in case law, and in existing law. It is under subsection (3) as it was drafted that we believe that problems might arise.
I have referred to cases where the number of articles that may attract design right may be ruled out under subsection (3) on the ground that it would be difficult to prove that anyone had had his design to purchase certain articles affected by the design itself. I have argued that that would lead to greater confusion and that, even worse than confusion, it might rule out whole series of articles which could attract a registered design right under existing law but might not do so as a result of subsection (3).
In column 623 the Minister said that he could not see any difficulty as to why a telephone or even a computer—I am sure that the hon. Member for Torridge and Devon, West (Miss Nicholson) will be interested in this—would not attract a registered design right and that he believed that this subsection would not rule that out.
I cast doubt then in Committee and do so again now on whether that would be the case. How would one prove whether the purchaser of hi-fi equipment, a computer or a telephone had been materially affected in making the decision to purchase by the design as opposed to the many functional and pricing issues? Does one buy a computer because of its design, its purely functional character or its price? Those issues are raised by clause 255(3), which says:
A design shall not be registered in respect of an article if the appearance of the article is not material, that is, if aesthetic considerations are not taken into account to a material extent by persons acquiring or using the article,
It is the phrase "material extent" that worried me, and I think that it worried others.
Many designs might not qualify for registered design right because it could not be proved that the purchase had been made as result of the material extent to which the aesthetic appeal of an article had attracted the purchaser. My two amendments seek to return to that argument, first by deleting subsection (3) and secondly by underpinning what we think is the existing law as a result of the 1972 Amp v. Utilex case. Amendment No. 326 says:
after 'eye', insert 'of persons acquiring or using the article'.
That makes it quite clear not just that one must take into account some theoretical aesthetic appeal but that the appeal must have some impact on the consumer.
The amendment reinforces the law as we think it stands, and as the Government intend. We are worried about the nature of clause 255(3). The Government have tabled amendment No. 103, which introduces the word "normally". I wait with bated breath to hear from the Minister whether the amendment meets the worry that I expressed in Committee. If he can say that, I shall be


happy to withdraw my amendment. We are on solid ground in worrying the Minister and the House about the potential impact of subsection (3) and the broad reference to the material extent to which purchases are affected by aesthetic design.

Mr. Butcher: We are aware that the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) does not like new section 1(3) of the Registered Designs Act 1949. However, it will not produce any significant change to the law as it stands following the recent Lego case, which I know has been keeping him awake for at least 12 months.
As I explained in Committee, the new section 1(3) is intended to make it clear that the question to be answered is not simply whether something has eye appeal in an abstract sense, but whether the eye appeal has a real impact on purchasers. It is important that designs of essentially functional articles are not registered, and the registry needs a workable test if it is to exclude essentially functional designs.
We are, of course, proposing a small change ourselves so that the test would be whether customers normally—the word to which the hon. Gentleman drew attention—take aesthetic appearance into account when they acquired articles of the kind in question. This is essentially the test stated by the Judicial Committee of the Privy Council in its recent judgment in the Lego case. We want to make this explicit so that the designs registry has a workable test that it can apply. That would be the difficulty with the hon. Gentleman's proposal. It would mean that we would still have a law which does not explicitly make clear what is required. That would be a mistake.
I am satisfied that there will be no problem about the clarity of the provision. I hope that that statement will not be held against me in future. When someone applies to register a design for a particular article, what will have to be decided is whether the aesthetic appearance of that kind of article normally matters to the customer. In other words, do customers normally care about the appearance of the article?
The fact that they may care as much, or even more, about other things is neither here nor there. All we want to know is whether aesthetic appearance normally matters, and in most cases there will be no doubt. In a few cases, however, there will be a doubt, and the registry will ask for evidence. Given that the reward is a registration giving a 25-year monopoly, I do not think that it is too much to ask applicants to follow such procedures in doubtful cases. The test is there to prevent essentially functional articles, such as internal structural girders, from being registered. It is not there to make life difficult or to limit unreasonably what can be registered, and I am confident that it will not do so.

Mr. Rowlands: The Minister is being extremely helpful, I think. Is the word "normally" being introduced to qualify the words "to a material extent"? We were worried that the requirement was broad and sweeping, but if the Minister can confirm that the word "normally" is intended to limit and restrict the concept of "to a material extent", I shall be more than happy to withdraw the amendment.

Mr. Butcher: I am divining what I think is an affirmative answer to the hon. Gentleman's question.

Mr. Rowlands: In that case, I beg to ask leave to withdraw the amendment.

Amendment, by leave withdrawn.

Amendments made: No. 103, in page 113, line 43, leave out from 'not' to end of line 44 and insert
'normally taken into account to a material extent by persons acquiring or using articles of that description'.

No. 338, in page 114, line 15, leave out '256' and insert
''(Provisions with respect to certain designs registered before commencement)'.—[Mr. Butcher.]

Clause 256

PROVISIONS WITH RESPECT TO CERTAIN DESIGNS REGISTERED BEFORE COMMENCEMENT

Amendment made: No. 104, in page 114, line 17, leave out clause 256.—[Mr. Butcher.]

Clause 258

RIGHT GIVEN BY REGISTRATION OF DESIGN

Mr. Butcher: I beg to move Government amendment No. 105, in page 116, line 11, at end insert—
'(6) The right in a registered design is not infringed by the reproduction of a feature of the design which, by virtue of section 1(1)(b), is left out of account in determining whether the design is registrable.'.

Mr. Doran: I am not sure whether at this time in the morning I can articulate my argument. The amendment appears to introduce a "must match" type provision into registered design right. Read together with new section 1(1)(b) of the 1949 Act, it seems to open up a whole new area of potential conflict and dispute. Can the Minister explain how he expects the proposal to operate in practice?

Mr. Butcher: The amendment is needed to overcome an unwanted effect of a part of the reasoning in the Lego judgment. Part of the reasoning in that judgment was that a design qualifies for registered designs protection if it includes any features that are not excluded by the definition of "design" in section 1 of the 1949 Act, and of course it is quite right that non-excluded features should be protected. However, according to Lego, what is registered, and therefore what is protected, is the whole of the design, including any excluded features. That would mean that "must match" and any other excluded features would in fact be protected, provided only that the design of which they form a part contains at least one non-excluded feature. This is, of course, the wrong result.
The aim of the "must match" exclusion is to allow copying of those features of a design for which there is no design freedom while protecting those features where there is design freedom. It is therefore necessary to make a specific provision to ensure that "must match" and other excluded kinds of design features do not get protection by the back door. The amendment makes the necessary provision.

Amendment agreed to.

Clause 259

DURATION OF RIGHT IN REGISTERED DESIGN

Mr. Butcher: I beg to move amendment No. 106, in page 116, line 19, leave out from 'design' to 'if in line 28 and insert—
(2) The period for which the right subsists may be extended for a second, third, fourth and fifth period of five years, by applying to the registrar for an extension and paying the prescribed renewal fee.


(3) If the first, second, third or fourth period expires without such application and payment being made, the right shall cease to have effect; and the registrar shall, in accordance with rules made by the Secretary of State, notify the proprietor of that fact.
(3A)'.

Madam Deputy Speaker: With this it will be convenient to take the following Government amendments: Nos. 107, 151 to 153, 295 and 154.

Mr. Blair: I would be grateful if the Minister could confirm that nothing in this group or the next group of amendments is inconsistent with our discussions in Committee, because they follow the pattern of points raised in Committee and concerns expressed to the Minister then.

Mr. Butcher: The amendments follow up the amendments that the hon. Member for Sedgefield (Mr. Blair) and his hon. Friends tabled in Committee and which I agreed to consider. They will require the design registry to send reminders when renewals are overdue and will allow registered designs that have inadvertently been allowed to lapse to be restored. We are also taking the opportunity to revise and update the corresponding provisions of the Patents Act 1977.

3 am

Mr. Rowlands: The amendments are important because they touch on the duration of rights in registered design. Do the amendments have any effect upon existing design rights? Under clause 259(2), existing design rights will be unable to qualify for the extra period.
When the patent law was changed, a concession was given. Do the amendments offer any hope that some extension will be granted to those holding existing design rights? If people enjoy design rights under the existing 15-year rule, surely there is no harm in offering a transitional extension to that right as we move over to the 25-year term. Such an extension was offered during the transitional period when the patent law was changed.

Mr. Butcher: Hon. Members will notice that we are also proposing some changes to the existing patent restoration provision. Our examination of registered designs has revealed that there are a few problems with the existing patent provision, which concern the way in which restoration is backdated and the protection given to those who take steps to work an invention that is the subject of a lapsed right, before an application for restoration is published.
The amendments deal with those matters, which are also embodied in the new registered design provisions. Amendment No. 154 also makes corresponding changes to section 64 of the Patents Act 1977 because, although it concerns a different subject, its drafting is similar to that in the restoration provisions.
It is clear from all this that I have reason to be particularly grateful to the Opposition. Not only have they suggested a worthwhile addition to the registered design provisions, but they have enabled us to attend to some necessary remedial work in the patents provisions. In reply to the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands), a number of the amendments that I have

moved formally are amendments that I believe he would have welcomed in response to questions asked in Committee.

Mr. Rowlands: In clause 259(2), none of the extensions to 25 years applies to the existing 15-year registered design right. Will the amendments help those who enjoy an existing registered design right? That right will last for 15 years under the existing provisions, but could be 25-year design right under the new terms. Under subsection (2), none of the existing registered design rights would enjoy any additional years, as provided for during the changeover in patent law.

Mr. Butcher: We contemplated whether the amendment to the Registered Designs Act 1949 should contain transitional provisions, since no such provisions presently exist. Present registration can be renewed, at most, twice only. The complexity of any amendment seems to outweigh any benefit.

Amendment agreed to.

Amendment made: No. 107, in page 117, line 11, at end insert—

'Restoration of lapsed right in design

8A.—(1) Where the right in a registered design has expired by reason of a failure to extend, in accordance with section 8(2) or (3A), the period for which the right subsists, an application for the restoration of the right in the design may be made to the registrar within the prescribed period.

(2) The application may be made by the person who was the registered proprietor of the design or by any other person who would have been entitled to the right in the design if it had not expired; and where the design was held by two or more persons jointly, the application may, with the leave of the registrar, be made by one or more of them without joining the others.

(3) Notice of the application shall be published by the registrar in the prescribed manner.

(4) If the registrar is satisfied that the proprietor took reasonable care to see that the period for which the right subsisted was extended in accordance with section 8(2) or (3A), he shall, on payment of any unpaid renewal fee and any prescribed additional fee, order the restoration of the right in the design.

(5) The order may be made subject to such conditions as the registrar thinks fit, and if the proprietor of the design does not comply with any condition the registrar may revoke the order and give such consequential directions as he thinks fit.

(6) Rules altering the period prescribed for the purposes of subsection (1) may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient.

Effect of order for restoration of right

8B.—(1) The effect of an order under section 8A for the restoration of the right in a registered design is as follows.

(2) Anything done under or in relation to the right during the period between expiry and restoration shall be treated as valid.

(3) Anything done during that period which would have constituted an infringement if the right had not expired shall be treated as an infringement—

(a)if done at a time when it was possible for an application for extension to be made under section 8(3A); or
(b)if it was a continuation or repetition of an earlier infringing act.

(4) if after it was no longer possible for such an application for extension to be made, and before publication of notice of the application for restoration, a person—

(a)began in good faith to do an act which would have constituted an infringement of the right in the design if it had not expired, or
(b)made in good faith effective and serious preparations to do such an act,


he has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the restoration of the right in the design; but this does not extend to granting a licence to another person to do the act.

(5) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (4) may—

(a)authorise the doing of that act by any partners of his for the time being in that business, and
(b)assign that right, or transmit it on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or the preparations were made.

(6) Where an article is disposed of to another in exercise of the rights conferred by subsection (4) or subsection (5), that other and any person claiming through him may deal with the article in the same way as if it had been disposed of by the registered proprietor of the design.

(7) The above provisions apply in relation to the use of a registered design for the services of the Crown as they apply in relation to infringement of the right in the design.'.—[Mr. Butcher.]

Clause 265

PERSONS ENTITLED TO DESCRIBE THEMSELVES AS PATENT AGENTS

Amendments made: No. 108, in page 120, line 35, leave out 'words' and insert 'expressions'.

No. 284, in page 120, line 38, leave out subsection (6).

No. 285, in page 120, line 44, at end insert—
'(7) This section has effect subject to—

(a)section 266 (persons entitled to describe themselves as European patent attorneys, &amp;c), and
(b)section(Use of the term "patent attorney": supplementary provisions.) (1) (use of term patent attorney" in reference to solicitors).'—[Mr. Butcher.]

Clause 266

PERSONS ENTITLED TO DESCRIBE THEMSELVES AS EUROPEAN PATENT ATTORNEYS, &C.

Amendments made: No. 109, in page 121, line 26, leave out 'words' and insert 'expressions'.

No. 286, in page 121, line 30, leave out subsection (6). —[Mr. Butcher.]

Clause 268

PRIVILEGE FOR COMMUNICATIONS WITH PATENT AGENTS

Amendments made: No. 287, in page 122, leave out lines 23 to 25 and insert—
'(1) This section applies to communications as to any matter relating to the protection of any invention, design, technical information, trade mark or service mark, or as to any matter involving passing off.
(2) Any such communication—'.

No. 110, in page 122, leave out line 43.

Clause 272

PRIVILEGE FOR COMMUNICATIONS WITH REGISTERED TRADE MARK AGENTS

Amendment made: No. 288, in page 125, leave out lines 1 and 2 and insert—
'(1) This section applies to communications as to any matter relating to the protection of any design, trade mark or service mark, or as to any matter involving passing off.
(2) Any such communication—'.—[Mr. Butcher.]

Mr. Iain Mills: rose—

Mr. Depury Speaker (Sir Paul Dean): We are dealing with amendments that have been discussed at the moment. I think the hon. Gentleman is concerned with amendment No. 278, which we shall come to later.

Amendments made: No. 111, in page 125, Line 14, after 'partnership', insert
'entitled to describe itself as a firm of registered trade mark agents, or
(c) a'.

No. 112, in page 125, leave out line 16.—[Mr. Butcher.]

Clause 284

DEVICES DESIGNED TO CIRCUMVENT COPY-PROTECTION

Amendments made: No. 113, in page 130, line 28, leave out 'have been' and insert 'are'.

No. 114, in page 130, line 31, leave out 'who issues' and insert 'issuing'.

No. 289, in page 130, line 32, leave out from 'who' to end of line 33 and insert
knowing or having reason to believe that it will be used to make infringing copies—'.

No. 115, in page 130, line 35, leave out 'apparatus or device' and insert 'device or means'.

No. 290, in page 130, line 35, at end insert 'specifically'.

No. 291, in page 130, line 38, leave out 'calculated' and insert 'intended'.

No. 116, in page 130, line 42, leave out 'apparatus or device' and insert 'device or means'.

No. 195, in page 130, line 45, leave out from 'an' to end of line 46 and insert 'infringing copy'.—[Mr. Butcher.]

No. 237, in page 131, line 2, after 'prevent' insert 'or restrict'—[Mr. Tim Smith.]

No. 196, in page 131, line 14, at end insert
'; and section(Order as to disposal of infringing copy or other article) of this Act applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (3) above'.—[Mr. Butcher.]

Clause 285

OFFENCE OF FRAUDULENTLY RECEIVING PROGRAMMES

Amendment made: No. 117, in page 131, line 17, leave out from 'a' to 'with' and insert 'broadcasting or cable programme service provided from a place in the United Kingdom'.—[Mr. Butcher.]

Clause 286

RIGHS AND REMEDIES IN RESPECT OF APPARATUS, &C. FOR FRAUDULENTLY RECEIVING PROGRAMMES

Amendments made: No. 292, in page 131, line 29, leave out from 'who to 'is' in line 31 and insert'—

(a) makes charges for the reception of programmes included in a broadcasting or cable programme service provided from a place in the United Kingdom, or
(b)sends encrypted transmissions of any other description from a place in the United Kingdom,'.

No. 119, in page 131, line 35, leave out 'without payment' and insert
'or other transmissions when they are not entitled to do so'.

No. 120, in page 131, line 37, leave out 'without payment' and insert
'or other transmissions when they are not entitled to do so'.

No. 197, in page 131, line 41, leave out from 'an' to end of line 42 and insert 'infringing copy'.

No. 198, in page 131, line 48 at end insert—


'(5) Section(Order as to disposal of infringing copy or other article) of this Act applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (3) above.'.

No. 293, in page 131, line 48, at end insert—
'(4A) In section 96(1) (innocent infringement of copyright) as it applies to proceedings for infringement of the rights conferred by this section, the reference to the defendant not knowing or having reason to believe that copyright subsisted in the work shall be construed as a reference to his not knowing or having reason to believe that his acts infringed the rights conferred by this section.'.—[Mr, Butcher.]

Clause 287

SUPPLEMENTARY PROVISIONS AS TO FRAUDULENT RECEPTION

Amendments made: No. 121, in page 132, line 1, leave out from beginning to 'no' in line 10 and insert—
'(1) Her Majesty may by Order in Council—
(a)provide that section 285 applies in relation to programmes included in services provided from a country or territory outside the United Kingdom, and
(b)provide that section 286 applies in relation to such programmes and to encrypted transmissions sent from such a country or territory.
(2)'.

No. 122, in page 132, line 13, leave out 'services falling within subsection (1)' and insert
'broadcasting or cable programme services provided from the United Kingdom or, as the case may be, for encrypted transmissions sent from the United Kingdom.
(2A) A statutory instrument containing an Order in Council under subsection (1) shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.

No. 123, in page 132, line 15, leave out first 'service'.

No. 124, in page 132, line 19, leave out subsections (4) and (5) and insert—
'(5) In sections 285 and 286, and this section "programme", "broadcasting" and "cable programme service", and related expressions, have the same meaning as in Part I (copyright).'.—[Mr. Butcher.]

Clause 288

FRAUDULENT APPLICATION OR USE OF TRADE MARK AN OFFENCE

Amendment proposed: No. 125, in page 133, line 7, at end insert—
'(1A) It is also an offence, subject to subsection (2) below, for a person to possess in the course of a business goods or material bearing a mark identical to or nearly resembling a registered trade mark with a view to enabling or assisting another person to do any of the things mentioned in subsection (l)(a) to (c), knowing or having reason to believe that the other person is not entitled to use the mark in relation to the goods in question and that the goods are not connected in the course of trade with a person who is so entitled.'.—[Mr. Butcher.]

Mr. Deputy Speaker: With this we are considering the following: Government amendments Nos. 126 and 127.

Amendment No. 278, in page 135, line 7, at end insert—

'Information, 58D

(1) Where articles seized or detained by any enforcement authority are, or appear to that authority to be, goods or material bearing such a mark as is mentioned in subsection (1) of section 58A of this Act, the authority may notify the proprietor of the registered trade mark or his authorised agent of the seizure or detention, as the case may be, and may disclose to him—

(a) the time, and the address of the place, of seizure or detention of the goods or materials;
(b) the nature and quantity of the goods seized or detained

and, if the authority is satisfied that the following information is required for the purpose of preventing the continuance of activities which amount to an offence under section 58A of this Act, or which are being committed abroad and would, if committed within the jurisdiction, amount to such an offence then the authority may also disclose to the said proprietor—

(c) the name and address of the person from whom the goods or materials have been seized or detained;
(d) any information identifying the source from which the goods or materials have come or by which they were produced.
(2) Any disclosure of information or documents made pursuant to this section shall not amount to an offence.'.

Mr. Mills: I apologise to you, Mr. Deputy Speaker. There was some confusion: I had wished to speak on privilege—patent agents and trade mark agents—but the remarkable and exciting pace of our proceedings rather caught me out. I hope that you and the House will forgive me.
Clause 288 introduces one of the most important matters in the Bill—criminal penalties against industrial counterfeiting. It is perhaps mean of me to raise a final point at this time of night, but I congratulate officials and the Minister on a job well done. They have done something to help industry and to ensure that the jobs that we have been losing—perhaps 100,000 of them—through industrial counterfeiting will now be protected against such activities.
My amendment tries to ensure that the communications between the statutory bodies—the trading standards officers, the customs and the police—are as good as they can be, so that information about industrial counterfeiting is exchanged when it is suspected or detected. I raised this in Committee, but I am told by trading standards officers that the solution described by the Minister then was not entirely simple. My amendment would allow freer disclosure of information between the statutory authorities, as well as between trading standards officers, the Customs and industry.
My hon. Friend knows the point that I am making. So as not to detain the House for too long, I shall ask him only two questions. First, is he truly satisfied that we have communication both ways between the statutory authorities? I am assured by the trading standards officers that it is not a simple matter of saying that the powers already exist. Secondly, will he go further and accept my amendment or, if not, make some helpful remarks on the information that will be passed between those authorities and industry?

Mr. Butcher: Amendment No. 278 is very similar to an amendment moved by my hon. Friend the Member for Meriden (Mr. Mills) in Committee. At that time, I said that there was little harm in the authorities disclosing the types of information identified in what are now paragraphs (a) and (b) of subsection (1) of the new clause to be inserted in the Trade Marks Act. However, I said that no specific provision was needed because the authorities were already free to disclose the information. Nothing has happened since to cause me to change my opinion on this point, and I consider that it would be positively misleading to insert a provision along those lines, with the implication that without it disclosure would be prohibited.
That leads me to paragraphs (c) and (d). They also featured in the previous amendment, and I resisted their inclusion on two grounds. The first was that information of this sort necessarily includes an element of judgment on


the facts that would prejudge the very matters that must be decided by a court, whether civil or criminal. It would be wrong for the authorities to release to one side only information that may be of use in possible litigation.
Our other reason for rejecting the amendment was that it would be wrong to regard trade mark proprietors or their representatives as being on a par with the official enforcement agencies. If anything, the way in which the amendment is now structured brings that point into stark relief.
I hope that for the reasons that I have given, especially that it would be misleading to insert such a provision, my hon. Friend will sympathetically consider withdrawing his amendment.

Mr. Deputy Speaker: The hon. Gentleman need not do that. His amendment is being discussed with a group.

Amendment agreed to.

Amendments made: No. 126, in page 133, line 8, after '(I)' insert 'or (1A)'.

No. 127, in page 133, line 17, leave out 'that subsection' and insert 'subsection (1)'.

No. 199, in page 133, line 41, leave out from 'may' to 'goods' in line 43 and insert
', if satisfied that at the time of his arrest or charge he had in his possession, custody or control—
(a)'.

No. 200, in page 134, leave out lines 4 to 9 and insert 'order that the goods or material be delivered up to such person as the court may direct.
(2) For this purpose a person shall be treated as charged with an offence—

(a) in England, Wales and Northern Ireland, when he is orally charged or is served with a summons or indictment;
(b)in Scotland, when he is cautioned, charged or served with a complaint or indictment.
(3) An order may be made by the court of its own motion or on the application of the prosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), but shall not be made if it appears to the court unlikely that any order will be made under section 58BA (order as to disposal of offending goods or material).'.

No. 201, in page 134, line 14, leave out subsection (4) and insert
'; and in Scotland, where an order has been made under this section, the person from whose possession, custody or control the goods or material have been removed may, without prejudice to any other form of appeal under any rule of law, appeal against that order in the same manner as against sentence.'.

No. 202, in page 134, leave out lines 17 to 23 and insert—
'(5) A person to whom goods or material are delivered up in pursuance of an order under this section shall retain it pending the making of an order under section 58BA.
(6) Nothing in this section affects the powers of the court under section 43 of the Powers of Criminal Courts Act 1973, section 223 or 436 of the Criminal Procedure (Scotland) Act 1975 or Article 7 of the Criminal Justice (Northern Ireland) Order 1980 (general provisions as to forfeiture in criminal proceedings).'.

No. 203, in page 134, line 23, at end insert—

'Order as to disposal of offending goods or material

58BA.—(1) Where goods or material have been delivered up in pursuance of an order under section 58B, an application may be made to the court for an order that they be destroyed or forfeited to such person as the court may think fit.

(2) Provision shall be made by rules of court as to the service of notice on persons having an interest in the goods or material, and any such person is entitled—

(a) to appear in proceedings for an order under this section, whether or not he was served with notice, and

(b) to appeal against any order made, whether or not he appeared;
and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
(3) Where there is more than one person interested in goods or material, the court shall make such order as it thinks just.
(4) References in this section to a person having an interest in goods or material include any person in whose favour an order could be made under this section or under section(Order as to disposal of infringing copy or other article),(Order as to disposal of illicit recordings) or(Order as to disposal of infringing article, &amp;c.) of the Copyright, Designs and Patents Act 1988 (which make similar provision in relation to infringement of copyright, rights in performances and design right).

(5) Proceedings for an order under this section may be brought—

(a) in a county court in England, Wales and Northern Ireland, provided the value of the goods or material in question does not exceed the county court limit for actions in tort, and
(b)in a sheriff court in Scotland;
but this shall not be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.'.—[Mr. Butcher.]

Clause 292

EXTENT

Amendments made: No. 128, in page 136, line 16, leave out 'broadcasts' and insert 'transmissions'.

No. 339, in page 136, line 19, leave out 'broadcasts' and insert 'transmissions'.

No. 129, in page 136, line 26, leave out from first 'which' to 'amends' in line 27.—[Mr. Butcher.]

Orders of the Day — Schedule 1

COPYRIGHT: TRANSITIONAL PROVISIONS AND SAVINGS

Amendments made: No. 130, in page 138, line 49, at end insert—
'(2) However—

(a) copyright subsists in the sound recording only if copyright subsisted in the film immediately before commencement, and it continues to subsist until copyright in the film expires;
(b) the author and first owner of copyright in the: film shall be treated as having been author and first owner of the copyright in the sound recording; and
(c) anything done before commencement under or in relation to the copyright in the film continues to have effect in relation to the sound recording as in relation to the film.'.

No. 131, in page 139, line 8, at end insert
'in accordance with the new copyright provisions for the purposes of the rights conferred by Chapter IV of Part I (moral rights), and for all other purposes shall be determined'.

No. 260, in page 140, line 25, after 'Crown', insert 'or Parliamentary'.

No. 261, in page 140, line 26, leave out 'paragraph 40' and insert 'paragraphs 40, 40A and 41'.

No. 132, in page 140, line 35, leave out from 'VII' to 'and' and insert
'(provisions with respect to copyright licensing).'.

No. 133, in page 140, line 44, leave out from beginning to first 'of and insert
'So much of section 18(2) as extends the restricted act of issuing copies to the public to include the rental to the public'

No. 134, in page 140, line 47, leave out 'hiring' and! insert 'renting'.

No. 206, in page 141, line 19, leave out from 'Section' to second 'in' and insert
'(Transfer of copies of works in electronic form) (transfer of copies, adaptations, &amp;c. of work'.

No. 135, in page 142, line 38, leave out from '239' to 'apply' and insert
'and 240 (appeals and rules)'.

No. 136, in page 146, line 41, leave out sub-paragraph (6).

No. 244, in page 147, line 25, at end insert—

'British ships, aircraft and hovercraft

38A. Section(British ships, aircraft and hovercraft: Part I)(British ships, aircraft and hovercraft) does not apply in relation to anything done before commencement.'.

No. 262, in page 147, line 27, leave out sub-paragraph (1) and insert—
'(1) Section 160 of this Act (general provisions as to Crown copyright) applies to an existing work if—

(a) section 39 of the 1956 Act applied to the work immediately before commencement, and
(b) the work is not one to which section(Copyright in Acts and Measures), 161 or(Copyright in Parliamentary Bills) applies (copyright in Acts, Measures and Bills and Parliamentary copyright: see paragraphs 40A and 41 below).'.

No. 263, in page 148, line 17 at end insert—
'40A.—(1) Section(Copyright in Acts and Measures) (copyright in Acts and Measures) applies to existing Acts of Parliament and Measures of the General Synod of the Church of England.
(2) References in that section to Measures of the General Synod of the Church of England include Church Assembly Measures.'.

No. 264, in page 148, line 19, leave out paragraph 41 and insert—
'41.—(1) Section 161 of this Act (general provisions as to Parliamentary copyright) applies to existing unpublished literary, dramatic, musical or artistic work, but does not otherwise apply to existing works.
(2) Section(Copyright in Parliamentary Bills) (copyright in Parliamentary Bills) does not apply—

(a) to a public Bill which was introduced into Parliament and published before commencement,
(b) to a private Bill of which a copy was deposited in either House before commencement or
(c) to a personal Bill which was given a First Reading in the House of Lords before commencement.'.—[Mr. Garel-Jones.]

Orders of the Day — Schedule 2

RIGHTS IN PERFORMANCES: PERMITTED ACTS

Amendments made: No. 137, in page 150, line 1, after', hire', insert 'or'.

No. 138, in page 150, line 2, leave out 'or distributed'.

No. 139, in page 150, line 28, after ', hire' insert 'or'

No. 140, in page 150, line 29, leave out 'or distributed'.

No. 141, in page 151, line 15, at end insert—
'(2A) Nothing in this paragraph shall be construed as excluding any defence of statutory authority otherwise available under or by virtue of any enactment.'.

No. 207, in page 151, leave out lines 17 to 28 and insert—

'Transfer of copies of works in electronic form

12.—(1) This paragraph applies where a recording of a performance in electronic form has been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to make further recordings in connection with his use of the recording.

(2) If there are no express terms—

(a) prohibiting the transfer of the recording by the purchaser, imposing obligations which continue after a transfer, prohibiting the assignment of any consent or terminating any consent on a transfer, or

(b) providing for the terms on which a transferee may do the things which the purchaser was permitted to do,
anything which the purchaser was allowed to do may also be done by a transferee without infringement of the rights conferred by this Part, but any recording made by the purchaser which is not also transferred shall be treated as an illicit recording for all purposes after the transfer.

(3) The same applies where the original purchased recording is no longer usable and what is transferred is a further copy used in its place.

(4) The above provisions also apply on a subsequent transfer, with the substitution for references in sub-paragraph (2) to the purchaser of references to the subsequent transferor.

(5) This paragraph does not apply in relation to a recording purchased before the commencement of Part II.

(6) Expressions used in this paragraph have the same meaning as in section(Transfer of copies of works in electronic form).'.

No. 252, in page 152, line 1, at end insert—

'Recordings of folksongs

6A.—(1) A recording of a performance of a song may be made for the purpose of including it in an archive maintained by a designated body without infringing any of the rights conferred by Part II, provided the conditions in sub-paragraph (2) below are met.

(2) The conditions are that—

(a) the words are unpublished and of unknown authorship at the time the recording is made,
(b) the making of the recording does not infringe any copyright, and
(c) its making is not prohibited by any performer.

(3) Copies of a recording made in reliance on sub-paragraph (1) and included in an archive maintained by a designated body may, if the prescribed conditions are met, be made and supplied by the archivist without infringing any of the rights conferred by Part II.

(4) In this paragraph—
designated body" means a body designated for the purposes of section(Recordings of folksongs), and "the prescribed conditions" means the conditions prescribed for the purposes of subsection (3) of that section;
and other expressions used in this paragraph have the same meaning as in that section.'.—[Mr. Garel-Jones.]

Orders of the Day — Schedule 3

REGISTERED DESIGNS: MINOR AND CONSEQUENTIAL AMENDMENTS OF 1949 ACT

Amendments made: No. 142, in page 154, line 34, leave out from 'fit' to end of line 40 and insert—
'(3A) The registrar may, in such cases as may be prescribed, direct that for the purpose of deciding whether a design is new an applicant shall be treated as made on a date earlier or later than that on which it was in fact made.'.

No. 143, in page 156, line 41, leave out '(3)' and insert '(3A)'.

No. 208, in page 158, line 41, leave out paragraph 17 and insert—
'17.—(1) Section 28 of the Registered Designs Act 1949 (the Appeal Tribunal) is amended as follows.
(2) For subsection (2) (members of Tribunal) substitute—
(2) The Appeal Tribunal shall consist of—

(a) one or more judges of the High Court nominated by the Lord Chancellor, and
(b) one judge of the Court of Session nominated by the Lord President of that Court.".
(3) In subsection (5) (costs), after "costs" (twice) insert "or expenses", and for the words from "and any such order" to the end substitute—
and any such order may be enforced—

(a) in England and Wales or Northern Ireland, in the same way as an order of the High Court;
(b) in Scotland, in the same way as a decree for expenses granted by the Court of Session.".
(4) For subsection (10) (seniority of judges) substitute—


(10) In this section 'the High Court' means the High Court in England and Wales; and for the purposes of this section the seniority of judges shall be reckoned by reference to the dates on which they were appointed judges of that court or the Court of Session.'.
(5) The amendments to section 28 made by section 10(5)of the Administration of Justice Act 1970 (power to make rules as to right of audience) shall be deemed always to have extended to Northern Ireland.'.

No. 245, in page 163, line 3, at end insert—
'(5) In paragraph (4) for "a department of the Government of Northern Ireland" substitute "a Northern Ireland department", and at the end add "and in relation to a Northern Ireland department references to the Treasury shall be construed as references to the Department of Finance and Personnel".'.—[Mr. Garel-Jones]

Orders of the Day — Schedule 4

THE REGISTERED DESIGNS ACT 1949 AS AMENDED ARRANGEMENT OF SECTIONS

Amendments made: No. 144, in page 164, line 14, at end insert—
'8A. Restoration of lapsed right in design.
8B. Effect of order for restoration of right.'.

No. 145, in page 165, line 42, leave out from 'not' to 'and' in line 43 and insert
'normally taken into account to a material extent by persons acquiring or using articles of that description'.

No. 146, in page 166, line 43, leave out from 'fit' to end of line 51 and insert—
'(3A) The registrar may, in such cases as may be prescribed, direct that for the purpose of deciding whether a design is new an application shall be treated as made on a date earlier or later than that on which it was in fact made.'.

No. 147, in page 170, line 38, at end insert—
'(6) The right in a registered design is not infringed by the reproduction of a feature of the design which, by virtue of section l(l)(b), is left out of account in determining whether the design is registrable.'.

No. 148, in page 170, line 41, leave out from 'design' to 'if in line 1 on page 171 and insert—
'(2) The period for which the right subsists may be extended for a second, third, fourth and fifth period of five years, by applying to the registrar for an extension and paying the prescribed renewal fee.
(3) If the first, second, third or fourth period expires without such application and payment being made, the right shall cease to have effect; and the registrar shall, in accordance with rules made by the Secretary of State, notify the proprietor of that fact.

(3A)'.

No. 149, in page 171, line 27, at end insert—

'Restoration of lapsed right in design

8A.—(1) Where the right in a registered design has expired by reason of a failure to extend, in accordance with section 8(2) or (3A), the period for which the right subsists, an application for the restoration of the right in the design may be made to the registrar within the prescribed period.

(2) The application may be made by the person who was the registered proprietor of the design or by any other person who would have been entitled to the right in the design if it had not expired; and where the design was held by two or more persons jointly, the application may, with the leave of the registrar, be made by one or more of them without joining the others.

(3) Notice of the application shall be published by the registrar in the prescribed manner.

(4) If the registrar is satisfied that the proprietor took reasonable care to see that the period for which the right subsisted was extended in accordance with section 8(2) or (3A), he shall, on payment of any unpaid renewal fee and any prescribed additional fee, order the restoration of the right in the design.

(5) The order may be made subject to such conditions as the registrar thinks fit, and if the proprietor of the design does not comply with any condition the registrar may revoke the order and give such consequential directions as he thinks fit.

(6) Rules altering the period prescribed for the purposes of subsection (1) may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient.

Effect of order for restoration of right

8B.—(1) The effect of an order under section 8A for the restoration of the right in a registered design is as follows.

(2) Anything done under or in relation to the right during the period between expiry and restoration shall be treated as valid.

(3) Anything done during that period which would have constituted an infringement if the right had not expired shall be treated as an infringement—

(a)if done at a time when it was possible for an application for extension to be made under section 8(3A); or
(b)if it was a continuation or repetition of an earlier infringing act.

(4) If after it was no longer possible for such an application for extension to be made, and before publication of notice of the application for restoration, a person—

(a)began in good faith to do an act which would have constituted an infringement of the right in the design if it had not expired, or
(b)made in good faith effective and serious preparations to do such an act,
he has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the restoration of the right in the design; but this does not extend to granting a licence to another person to do this act.

(5) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (4) may—

(a)authorise the doing of that act by any partners of his for the time being in that business, and
(b)assign that right, or transmit it on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or the preparations were made.

(6) Where an article is disposed of to another in exercise of the rights conferred by subsection (4) or subsection (5), that other and any person claiming through him may deal with the article in the same way as if it had been disposed of by the registered proprietor of the design.

(7) The above provisions apply to the use of a registered design for the services of the Crown as they apply in relation of the infringement right in the design.'.

No. 150, in page 174, line 49, leave out '(3)' and insert (3A)'

No. 209, in page 181, line 48, leave out from 'of to end of line 50 and insert—

(a)one or more judges of the High Court nominated by the Lord Chancellor, and
(b)one judge of the Court of Session nominated by the Lord President of that Court.'.

No. 210, in page 182, line 18, after 'costs', insert 'or expenses'.

No. 211, in page 182, line 20 leave out from 'be' to end of line 21 and insert 'enforced—

(a)in England and Wales or Northern Ireland, in the same way as an order of the High Court;
(b)in Scotland, in the same way as a decree for expenses granted by the Court of Session.'.

No. 212, page 182, line 43, at end insert 'or the Court Session'.

No. 246, in page 187, line 43, leave out from 'a' to end of line 44 and insert
'a Northern Ireland department, and in relation to a Northern Ireland department references to the Treasury shall be construed as references to the Department of Finance and Personnel'.

No. 247, in page 191, line 50, at end insert—

'COMPENSATION FOR LOSS OF PROFIT

2A.—(1) Where Crown use is made of a registered design, the government department concerned shall pay—

(a)to the registered proprietor, or
(b)if there is an exclusive licence in force in respect of the design, to the exclusive licensee
compensation for any loss resulting from his not being awarded a contract to supply the articles to which the design is applied.

(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing capacity; but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.

(3) In determing the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing capacity was under-used.

(4) No compensation is payable in respect of any failure to secure contracts for the supply of articles to which the design is applied otherwise than for the services of the Crown.

(5) The amount payable under this paragraph shall, if not agreed between the registered proprietor or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under paragraph 3; and it is in addition to any amount payable under paragraph 1 or 2 of this schedule.

(6) In this paragraph—
"Crown use", in relation to a design, means the doing of anything by virtue of paragraph 1 which would other-wise be an infringement of the right in the design; and

"the government department concerned", in relation to such use, means the government department who or on whose authority the act was done."

No. 248, in page 191, line 52 [Schedule 4], leave out from 'to to 'may' in line 2 on page 192 and insert—

'(a) the exercise by a Government department, or a person authorised by a Government department, of the powers conferred by paragraph I of this Schedule,
(b) terms for the use of a design for the services of the Crown under that paragraph.
(c) the right of any person to receive any part of a payment made under paragraph 1(3), or
(d) the right of any person to receive a payment under paragraph 2A,'—[Mr. Garel-Jones.]

Orders of the Day — Schedule 5

PATENTS: MINOR AMENDMENTS

Amendments made: No. 294, in page 194, line 15 at end insert—
'4A. In section 130(1) of the Patents Act 1977 (interpretation), in the definition of "search fee", for "section 17 above" substitute "section 17(1) above".'.

No. 151, in page 194, line 26 at end insert—
'(2A) After subsection (2) insert—
(2A) Notice of the application shall be published by the comptroller in the prescribed manner.".'.

No. 152, in page 194, line 30, leave out from beginning to 'does' and insert This amendment'.

No. 153, in page 194, line 34, at end insert—
'(4) Omit subsections (5) to (9) (effect of order for restoration).

5A. After that section insert—

"Effect of order for restoration of patent

28A.—(1) The effect of an order for the restoration of a patent is as follows.

(2) Anything done under or in relation to the patent during the period between expiry and restoration shall be treated as valid.

(3) Anything done during that period which would have constituted an infringement if the patent had not expired shall be treated as an infringement—

(a) if done at a time when it was possible for the patent to be renewed under section 25(4); or

(b) if it was a continuation or repetition of an earlier infringing act.

(4) If after it was no longer possible for the patent to be so renewed, and before publication of notice of the application for restoration, a person—

(a) began in good faith to do an act which would have constituted an infringement of the patent if it had not expired, or
(b) made in good faith effective and serious preparations to do such an act,
he has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the restoration of the patent; but this right does not extend to granting a licence to another person to do the act.

(5) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (4) may—

(a) authorise the doing of that act by any partners of his for the time being in that business, and
(b) assign that right, or transmit it on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or the preparations were made.

(6) Where a product is disposed of to another in exercise of the rights conferred by subsection (4) or (5), that other and any person claiming through him may deal with the product in the same way as if it had been disposed of by the registered proprietor of the patent.

(7) The above provisions apply in relation to the use of a patent for the services of the Crown as they apply in relation to infringement of the patent.".'.

No. 295, in page 194, line 34, at end insert—
'5B. In consequence of the above amendments—

(a) in section 60(6)(b) of the Patents Act 1977, for "section 28(6)" substitute "section 28A(4) or (5)"; and
(b) in sections 77(5), 78(6) and 80(4) of that Act, for the words from "section 28(6)" to the end substitute "section 28A(4) and (5) above, and subsections (6) and (7) of that section shall apply accordingly.".'.

No. 296, in page 195, line 3, at end insert—
'6A. In section 74(6) (meaning of "entitlement proceedings"), for "section 37(l)(a) above" substitute "section 37(1) above".'.

No. 154, in page 196, line 37, at end insert—

'Right to continue use begun before priority date

10A. For section 64 of the Patents Act 1977 (right to continue use begun before priority date) substitute—

"Right to continue use begun before priority date

64.—(1) Where a patent is granted for an invention, a person who in the United Kingdom before the priority date of the invention—

 (a)does in good faith an act which would constitute an infringement of the patent if it were in force, or
(b)makes in good faith effective and serious preparations to do such an act,
has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the grant of the patent; but this right does not extend to granting a licence to another person to do the act.

(2) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (1) may—

(a) authorise the doing of that act by any partners of his for the time being in that business, and
(b) assign that right, or transmit it on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or the preparations were made.

(3) Where a product is disposed of to another in exercise of the rights conferred by subsection (1) or (2), that other and any person claiming through him may deal with the product in the same way as if it had been disposed of by the registered proprietor of the patent.".'.

No. 249, in page 196, line 37, at end insert—

CROWN USE: COMPENSATION FOR LOSS OF PROFIT

10A.—(1) In the Patents Act 1977, after section 57
insert—

"compensation for loss of profit

57A.—(1) Where use is made of an invention for the services of the Crown, the government department concerned shall pay—

(a) to the proprietor of the patent, or
(b) if there is an exclusive licence in force in respect of the patent, to the exclusive licensee,
compensation for any loss resulting from his not being awarded a contract to supply the patented product or, as the case may be, to perform the patented process or supply a thing made by means of the patented process.

(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing or other capacity; but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing or other capacity was under-used.

(4) No compensation is payable in respect of any failure to secure contracts to supply the patented product or, as the case may be, to perform the patented process or supply a thing made by means of the patented process, otherwise than for the services of the Crown.

(5) The amount payable shall, if not agreed between the proprietor or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under section 58, and is in addition to any amount payable under section 55 or 57.

(6) In this section 'the government department concerned', in relation to any use of an invention for the services of the Crown, means the government department by whom or on whose authority the use was made.

(7) In the application of this section to Northern Ireland, the reference in subsection (5) above to the Treasury shall, where the government department concerned is a department of the Government of Northern Ireland, be construed as a reference to the Department of Finance and Personnel.".

(2) In section 58 of the Patents Act 1977 (reference of disputes as to Crown use), for subsection (1) substitute—
(1) Any dispute as to—

(a) the exercise by a government department, or a person authorised by a government department, of the powers conferred by section 55 above,
(b) terms for the use of an invention for the services of the Crown under that section,
(c) the right of any person to receive any part of a payment made in pursuance of subsection (4) of that section, or
(d) the right of any person to receive a payment under section 57A,
may be referred to the court by either party to the dispute after a patent has been granted for the invention."; 
and in subsection (4) for "under this section" substitute "under subsection (l)(a), (b) or (c) above".

(3) In section 58(11) of the Patents Act 1977 (exclusion of right to compensation for Crown use if relevant transaction, instrument or event not registered), after "section 57(3) above)" insert ", or to any compensation under section 57A above,".

(4) The above amendments apply in relation to any use of an invention for the services of the Crown after the commencement of this section, even if the terms for such use were settled before commencement.'.

No. 297, in page 196, line 37, at end insert—

'Compulsory licensing: reliance on statements
in competition report

10A. In section 53(2) of the Patents Act 1977 (compulsory licensing: reliance on statements in reports of Monopolies and Mergers Commission)—

(a)for "application made in relation to a patent under sections 48 to 51 above" substitute "application made under section 48 above in respect of a patent"; and
(b)after "Part VII of the Fair Trading Act 1973" insert "or section 17 of the Competition Act 1980".'.

No. 213, in page 199, leave out lines 32 to 34 and insert—
'(2) If the application, or the designation of the United Kingdom in it, is withdrawn or (except as mentioned in subsection (3)) deemed to be withdrawn under the Treaty, it shall be treated as withdrawn under this Act.'.

No. 214, in page 199, line 35, leave out
'cease to be treated as an application'
and insert 'be treated as withdrawn'.

No. 215, in page 199, leave out lines 45 to 49.

No. 216, in page 200, line 12, at end insert
'having such date of filing as he may direct'.

No. 217, in page 200, line 21, leave out from 'begins' to end of line 27 and insert
—

(a) when the prescribed period expires, provided any necessary translation of the application into English has been filed at the Patent Office and the prescribed fee has been paid by the applicant; or
(b) on the applicant expressly requesting the comptroller to proceed earlier with the national phase of the application, filing at the Patent Office—

(i) a copy of the application, if none has yet been sent to the Patent Office in accordance with the Treaty, and 
(ii) any necessary translation of the application into English,
and paying the prescribed fee.'.

No. 218, in page 200, line 36, leave out from 'if to 'otherwise' in line 38 and insert
`—

(a) when the prescribed period expires, any necessary translation of the amendment into English has been filed at the Patent Office, or
(b) where the applicant expressly requests the comptroller to proceed earlier with the national phase of the application, there is then filed at the Patent Office—

(i) a copy of the amendment, if none has yet been sent to the Patent Office in accordance with the Treaty, and 
(ii) any necessary translation of the amendment into English;'.

No. 219, in page 200, line 51, leave out from 'where' to second 'the' in line 52 and insert
'in accordance with the Treaty any extra days are allowed'

No. 220, in page 201, line 4, after 'application', insert—
', not having been published under this Act,'.

No. 221, in page 201, line 11, after 'application', insert—
', not having been published under this Act,'.

No. 222, in page 201, line 27, leave out 'an' and insert 'the'.—[Mr. Garel-Jones.]

Orders of the Day — Schedule 7

CONSEQUENTIAL AMENDMENTS: GENERAL

No. 156, in page 207, line 4, at end insert

'Public Libraries (Scotland) Act 1955 (c. 27)

5A. In section 4 of the Public Libraries (Scotland) Act 1955 (extension of lending power of public libraries), make the existing provision subsection (1) and after it add—
(2) The provisions of Part I of the Copyright, Designs and Patents Act 1988 (copyright) relating to the rental of copies of sound recordings, films and computer programs apply to any lending by a statutory library authority or copies of such works, whether or not a charge is made for that facility.".'.

No. 157, in page 207, leave out lines 5 to 8.

No. 158. in page 207, line 14, at end insert—

'Public Libraries and Museums Act 1964 (c. 75)

7A. In section 8 of the Public Libraries and Museums Act 1964 (restrictions on charges for library facilities), after subsection (5) add—
(6) The provisions of Part I of the Copyright, Designs and Patents Act 1988 (copyright) relating to the rental of copies of sound recordings, films and computer programs apply to any lending by a library authority of copies of such works, whether or not a charge is made for that facility.".'.

No. 159, in page 210, line 11, leave out from 'or' to 'of in line 12 and insert
'any patents county court having jurisdiction by virtue of an order under section 275'.

No. 160, in page 212, line 4, at end insert—

'Education and Libraries (Northern Ireland) Order 1986 (S.I. 
1986 594 (N.I.3))

32A. In Article 77 of the Education and Libraries (Northern Ireland) Order 1986 (charges for library services), after paragraph (2) add—

"(3) The provisions of Part I of the Copyright, Designs and Patents Act 1988 (copyright) relating to the rental of copies of sound recordings, films and computer programs apply to any lending by a board of copies of such works, whether or not a charge is made for that facility.".'.—[Mr. Garel-Jones.]

Orders of the Day — Schedule 8

REPEALS

Amendments made: No. 298, in page 216, line 51, column 3, at end insert—
'Section 28(5) to (9).'.

No. 299, in page 216, line 52, column 3, at end insert—
'Section 72(3).'.

No. 300, in page 217, line 9, column 3, at end insert—
'In section 130(7), the words "88(6) and (7),".'.

No. 161, in page 217, line 10, column 3, leave out 'paragraph' and insert 'paragraphs 1 and'.—[Mr. Garel-Jones.]

Title

Amendment made: In line 10, leave out 'programmes' and insert 'transmissions'.

Order for Third Reading read.

Motion made, and Question proposed, That the Bill be read the Third time.—[Mr. Garel-Jones.]

Mr. Blair: This is an historic Bill in the law of copyright. I say that because Copyright Bills are so rare that when they occur they are invariably historic. None the less, this Bill has done a tremendous amount to bring the law of copyright up to date.
I thank the officials of the Department of Trade and Industry, who were of tremendous assistance to Members on both sides of the Committee. I also thank many of those who lobbied us on the Bill. We have always had an ambivalent attitude to those lobbies. On the one hand, they can make life extremely hot for us, but on the other, if they had not been there to lobby us, we would not have appreciated many of the issues to be debated in the Bill.

I thank also my hon. Friends who have raised many points with considerable assiduity and concern. The Government have met many of the problems that we raised. I commend them for doing so. They have met the difficulties raised concerning photographers. They have partly met those on publishing and commercial photocopying, rentals, computers and a host of other minor matters. The Government have rejected other Opposition pleas, particularly those relating to journalists, the blank tape levy and moral rights, but ultimately the Bill will be judged by its effect on industry and its ability to strike a correct balance between industry and the consumer.
I do not believe that the Opposition are necessarily right about every aspect of the Bill. We do not have a monopoly of wisdom. However, we have done our best to ensure that an adequate balance has been struck. Ultimately it will be those who work and earn their living in the copyright industries who will have the final word.

Mr. Butcher: First, I thank you, Mr. Deputy Speaker, and also Madam Deputy Speaker, Mr. Speaker and the hon. Member for Cambridge (Mr. Rhodes James) who presided over the Committee stage, for the courtesy, kindness and, when needed, the brisk approach that have been applied to our proceedings.
My officials have been in the trenches on this issue for about four years. Therefore, I thank them on behalf of the whole House. They have made themselves available at all times to all members of the Committee, on both sides. There were even occasions when they briefed Opposition Members before they briefed me. I am sure that the House wishes to acknowledge their great efforts on our behalf.
In my view, the proceedings on this Bill have shown the House of Commons in its best light. Such a view of the House is not often presented to the public. Its mood has almost always been constructive. Sincerely held views were expressed and the exchanges were candid.
I thank all my hon. Friends who served on the Committee and who have stayed so late tonight. In particular I thank my two parliamentary private secretaries who served the Committee without a formal brief. As volunteers, their work was very much appreciated.
I commend the Bill to their Lordships. I hope that they will be particularly kind to it. I believe that it will stand the test of time but that, like Halley's comet, it will come back after another two decades. We hope that it will return to this House in good shape.

Question put and agreed to.

Bill accordingly read the Third time, and passed, with amendments.

Orders of the Day — PETITION

Greyhound Racing (Taxation)

Mr. Austin Mitchell: I beg to present a petition from Mr. Robert Anthony Fisher of 32 Colne avenue, Watford, in the county of Hertford. It states that various dog tracks have imposed a levy on all winning bets and that bookmakers have imposed an additional levy on top of the off-course betting duty, both without


Parliament's consent. Mr. Fisher is petitioning Parliament to stop that illegal taxation. I shall ask the Clerk to read the petition.
The Clerk at the Tableread the petition, which was as Follows:
To the Honourable the Commons of the United Kingdom of Great Britain and Northern Ireland assembled in Parliament.
The Humble Petition of Robert Anthony Fisher:
Sheweth
That, whereas by authority of Parliament held in the twenty-fifth year of the reign of Edward the Third, King of England, it was declared and enacted that thenceforth by the good laws and statutes of this Realm your petitioner has inherited the freedom that he should not be compelled to contribute to any tax or other like charge not set by common consent in Parliament and later called the 'Petition of Right' and
Whereas of late divers persons have, contrary to this freedom, usurped the authority of Parliament and notwithstanding the protests of your humble petitioner, imposed upon him and many others of Her Majesty's subjects, Taxes, which have not been approved by Parliament and in the manners following.
Notwithstanding that by the gracious consent of Parliament in 1987 on course Betting Duty, for the benefit of the public purse was abolished absolutely, the proprietors of a number of greyhound stadia, having the power to admit bookmakers at their discretion, have persuaded the latter to levy a tax upon all winning bets placed by members of the public and to deliver the proceeds to the said proprietors for their use or benefit. Your humble petitioner has thus been unlawfully taxed at Wembley, Wimbledon and Wathamstow and
Whereas it has been enacted by Parliament that off-course Betting Duty be set at 8% divers persons and companies, namely Ladbrokes, William Hill, Mecca, Corals, Ansell &amp; Sons and many others have imposed rates of tax in excess of 8% upon your humble petitioner and other good and loyal subjects and have converted the surplus to their own devices and benefit.
And all these taxes are taken contrary to protest, without the consent of those who are required to pay and without consideration and contrary to the laws, freedoms and customs of this Realm and Reckless of the authority of the honourable Commons in Parliament assembled.
Wherefore your petitioner prays your honourable House do put down those pernicious practices and do confirm and strengthen the laws of this Realm and the Authority of Parliament so that it be a punishable offence for any person to demand or receive any tax or like charge

(i) levied upon the public or any part thereof, for which no consideration is given or consent obtained, save as may be lawfully sanctioned by Parliament 
(ii) as aforesaid in respect of any amount or rate of tax in excess of that laid down and approved by Parliament
And your petitioner, as in duty bound, will ever pray etc.…

To lie upon the Table.

Orders of the Day — Trainees (Dyslexia)

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Garel-Jones.]

Mr. James Paice: Obviously, at this late hour, it is difficult to be grateful for everything, but I am extremely grateful for the opportunity to present this short Adjournment debate to bring to the attention of the House a matter which I believe is of great significance for a small number of people, who are, in their own way, very important. I refer to young people on youth training schemes who suffer from severe dyslexia, a malady which has been researched in some detail, but about which a great deal is still to be discovered.
Before explaining the problem more fully to the House, I should explain that the initial impetus for my inquiries came from problems experienced by a company of which I am a director, and which operates a managing agency for the youth training scheme.
Although I wish to approach the general aspects of the problem, I shall refer to a specific example and I am grateful to my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) and to my hon. Friend the Member for Suffolk, Central (Mr. Lord) for their agreement to my using information pertaining to their constituencies.
One of the great strengths of the youth training scheme is the amount of effort that has been put in by the Manpower Services Commission, now the Training Commission, in ensuring the provision and the promotion of equal opportunity for all young people in YTS, and particularly the comprehensive range of special help which is provided for people with disabilities so that they should be able to achieve the same advantages from YTS training as their peers.
The commission's definition of disability includes moderate or severe learning difficulties, however, caused. The information which I wish to draw to the attention of the House and my hon. Friend the Minister shows that the highly commendable objective of the commission and the Government is being thwarted by the intransigence of at least one vocational examining body.
There are a number of occupations which are purely practical in nature and which a dyslexic worker could fulfil just as well as any other individual. Obviously, in terms of future advancement in the industry, illiteracy due to dyslexia can become a hindrance, but at the craft level, the ability to obtain and to practise the skills is unaffected by dyslexia.
The problem is that in some cases the vocational qualifications to demonstrate the skills can be achieved only by written examination. For example, I have here a total of four question papers put out in June 1988 by the City and Guilds of London Institute for an agriculture phase 2 exam. There is a total of 10 hours of written examinations.
I have read carefully every single question in those papers, and it is extremely difficult to conceive of a time when a working person would ever have to read one of those questions, let alone write down the information required, other than for the purposes of passing that examination. As my hon. Friend the Minister is aware, in


agriculture the City and Guilds phase 2 is recognised as the appropriate qualification at craft level and was the final qualification under the agricultural apprenticeship offered by the Agricultural Training Board.
What is essential for the trainee and for a future employer is that the young person has demonstrated the level of knowledge and skill required. Obviously, an employer would wish to know if there are problems of illiteracy, but that is a matter separate from the assessment of skills.
The example I shall give demonstrates that all that could be achieved under this system is a failure of the examination paper with the result that any potential employer would almost certainly jump to the conclusion that the examination had been failed through ignorance rather than because of a fundamental problem of dyslexia, which is totally unrelated to the knowledge and skills involved in the occupation.
I should like to refer to the example of a young lad named Ian Hurren. He is a constituent of my hon. Friend the Member for Suffolk, Central. Ian has just completed a two-year youth training scheme in agriculture but he has not achieved any national vocational qualification, despite the view of the managing agent and staff of the agricultural college he attended that he is a student of exceptional ability. I have with me a catalogue of documents, including several letters. I have one from his original school, in which the senior teacher says:
throughout his time at the school, he suffered from a form of dyslexia which presents him with considerable reading and, therefore, learning problems.
I also have a letter from the senior educational psychologist of Suffolk county council which states—this is significant—
On a short form of the Weschler Adult Intelligence Scale, Ian's sub-test scores show wide variation. This can be readily attributed to his reading deficiency as those sub-tests which are more directly related to this are scored lower whilst the others are scored much higher. Indeed, on the block design sub-test, a measure of ability to analyse and synthesise, he scored maximum points and well within the allocated time limits. If this had been repeated throughout, Ian would be intellectually outstanding.
That demonstrates that that young lad has an inbuilt difficulty but that it would be totally unjustified and unwarranted to associate that with any lack of overall ability or intellect. That letter demonstrates the opposite. The same letter goes on:
I recommend unreservedly that Ian is given some dispensation for formal academic examinations. There is a need for questions or instructions to be read to him for practical tests with the opportunity for repetition on request (perhaps pre-recorded magnetic tape) otherwise, an amanuensei is necessary.
Armed with information such as that, one would have expected notice to have been taken. Requests from the managing agent, the agricultural college and the Training Commission at headquarters level to the City and Guilds of London all met with a nil response. In a letter to the college it stated:
I am afraid that our current policy regarding students with differing disabilities of dyslexia is quite firm in not permitting readers or amanuenses.
Yet the regulations of the City and Guilds of London state:
in general the employment of readers or amanuensis is not permitted except where such activity could be shown to be a normal aspect of the job being examined. It is, however,

usually possible for a candidate who is suffering from a temporary handicap such as a fractured wrist to be permitted the assistance of an amanuensis provided medical evidence is available.
In other words, if young Ian Hurren had conveniently broken his wrist the week before the examination, he could have taken it, had an amanuensis and nobody would have been any the wiser. Because he had a different problem, that was not allowed. No help was available other than the offer of extended time for the examination. The Dyslexia Association has told us that that is of no value to somebody who is genuinely suffering from dyslexia.
The House will not be surprised to note that, as a result of that intransigence, Ian did not take the exam formally. However, he sat it informally, with an amanuensis, under the auspices of the agricultural college. On the four papers to which I have referred, he achieved marks of 77 per cent., 69 per cent,, 73 per cent., and 69 per cent.—a clear illustration of his ability.
That is but one example. I do not wish the House to believe that I have come to the debate with just one problem. I considered that I should illustrate the problem and bring it to the attention of the House and in particular of my hon. Friend the Minister.
I am aware that, because of the level of intransigence regarding the provision of amanuenses, it has been the practice of certain examination centres to provide an amanuensis and not to tell the City and Guilds of London. Many would say that that is a dishonest practice, but, in the circumstances, it is an understandable reaction.
I look forward to hearing what my hon. Friend says in reply. It is important to remind the House of the policy of the National Council for Vocational Qualifications. It is totally endorsed by the Training Commission in its codes of practice. The council states:
key criteria for national vocational qualifications, of particular relevance to trainees with special needs, is that they should be based on the assessment of standards, free of definition of mode, place or pace of learning".
It goes on to state:
any valid method of assessment which demonstrates that the competence under test has been achieved to the specified standard should be encouraged, for example, it may be possible to substitute oral questions for written ones.
Again it states:
where a trainee's performance can be assisted with the use of mechanical aids such as typewriters or tape recorders, these should also be permitted".
As my hon. Friend knows, I have a total commitment to the youth training scheme and to the Government's efforts to provide opportunities for all young trainees, regardless of their backgrounds or personal problems. YTS has come a long way since it began. The advent of the National Council for Vocational Qualifications has added great depth and meaning to many qualifications that are available through YTS. It is now policy that, under the NCVQ, assessment must not become a barrier to achievement. I am sure that that view will be shared by all hon. Members. Sadly, though, as I have explained, there are individuals for whom it is very much a barrier.
Although there are practical occupations, it is absolutely essential that we have a vocational qualification system that allows skills and knowledge to be accurately assessed without them being hidden by other problems such as dyslexia. I am well aware that dyslexia is sometimes used as a means of hiding a lack of academic ability, but there are several genuine cases in which the


lack of an effective means of assessment—I have demonstrated one—can jeopardise a young person's career.
The charge of ignorance is often laid at the door of the dyslexic. I hope that the House will agree that that charge is totally unwarranted. The example that I quoted demonstrates that point. It is essential that we remove that slur from the dyslexic's existing list of problems.
I have quoted just one example from one industry. I have discussed the matter with the National Council for Vocational Qualifications. It assured me that it is a genuine and important problem across a whole range of practical occupations. It is important, not only to the lad to whom I have referred but to many other people, now and in the future, who embark on training within and outside the YTS, who will look to a form of assessment of their genuine skills. I hope that such opportunities for forms of assessment exist in future and that my hon. Friend will be able to give me some encouragement.

The Pariiamentary Under-Secretary of State for Employment (Mr. Patrick Nicholls): Despite the lateness of the hour, I compliment my hon. Friend the Member for Cambridgeshire, South-East (Mr. Paice) on choosing this subject for debate, for the way that he has introduced it and for the detail that he has given us. I am grateful to him for his courtesy in giving me a detailed idea of the sort of material that he would be bringing before the House.
It might help the House if I outline briefly where the youth training scheme programme stands and then try to pick up the points that my hon. Friend has made in the time that remains available to me. We can all agree that the YTS has been a remarkable achievement. We spend over £1 billion a year on YTS, and 70 per cent. of 16-year-old school leavers and a growing proportion of 17-year-oids who leave school are involved in the scheme. In many parts of the country, and for many industries, YTS has become the normal route into work for those who do not go into some form of further or higher education. The YTS offers a sustained and well-structured vocational training course with on and off the job training and the opportunity to study for relevant vocational qualifications.
The figures show that the scheme is working. For example, 80 per cent. of young people who have been trained through YTS say that they found it worth while, and over 75 per cent., when we follow them up three months later, say that they are in a job or going into some form of further education.
An important development in YTS is the provision for YTS trainees to work for nationally recognised vocational qualifications. That is at the heart of tonight's debate. All trainees on two-year YTS have the opportunity to work for nationally recognised qualifications or, at the least, a credit towards one, and 98 per cent. of trainees who have gone on to a second year in YTS went in for a qualification in their first year. It is the aim that trainees with different needs and abilities should be able to proceed at their own pace. That brings me on to young people on YTS with disabilities and special training needs.
From the start, YTS has always made provision for young people with disabilities. "Disabilities" is widely defined, and includes those who suffer from dyslexia. There are a number of ways in which special help is made available on YTS to enable such young people to take full

advantage of the opportunities that are offered, and to compete on equal terms with their peers. We are much aware of the need to ensure equality of access to vocational qualifications. We established the National Council for Vocational Qualifications in 1986 to reform the qualification system and make qualifications more relevant to work. The council is addressing this task: by giving its kitemark—the NVQ—only to qualifications that reflect competence to do the job.
It is a corollary of that that those who are competent should not be prevented from gaining or even taking a qualification because of a disability which is irrelevant to their chosen occupation. Where an examination is intended to measure a practical skill, the NCVQ may well ask the examining body to consider testing techniques other than a written examination to ensure equality of access to the qualification.
My hon. Friend the Member for Cambridgeshire, South-East will understand that I cannot comment specifically on the particular instances that he has in mind. However, the relevant awarding body has submitted the qualification in agriculture to the NCVQ for accreditation and the council has given the qualification a conditional accreditation at level 1 of the NCVQ framework. Conditional accreditation means that the qualification substantially meets the NCVQ's criteria but that certain improvements need to be made to bring the qualification fully into line with the council's requirements. I understand that the conditions in the case to which my hon. Friend referred relate to whether the qualification is a valid measure of competence in the job.
I am sure that my hon. Friend the Member for Cambridgeshire, South-East will understand also that I cannot preface my remarks by talking specifically about the case that he has in mind that involves the NCVQ, but there are a number of points, subject to that caveat, to which I can helpfully draw attention.
My hon. Friend mentioned amanuenses, and quoted from a letter written by the City and Guilds of London Institute, which stated, in effect, that it is not current policy to provide amanuenses. Perhaps my hon. Friend derived some comfort from that. That use of "current" suggests that there might be the possibility of change.
My hon. Friend spotted in the correspondence, as I did, the reference to it being possible to provide extra time in most instances. Without commenting on the particular case, it may be that because of the disability, as my hon. Friend said, the provision of extra time is wholly inapplicable. One can imagine, without stretching credulity too far, being given an extra half an hour to sit an examination in Spanish, which is not much use if one does not speak Spanish or wish to learn it.
I had a look at the various examination boards that deal with academic subjects. Until now, it has not been the practice of the Oxford and Cambridge board to allow the use of an amanuensis, but it intends to do so from 1990. The northern examination board already provides for dyslexics to be able to use its facilities. There might be the rather bizarre result that somebody could do their O and A levels on the northern examination board, go to university, use the facilities of an amanuensis there, graduate with a first-class degree in ergonomics or agriculture, go to the finest agricultural college in the land —Seale-Hayne, in my constituency—leave it with a first-class examination qualification, be competent to get a job running a substantial estate, but, because of dyslexia,


be incapable of being an agricultural craftsman. That may be reductio ad absurdum, but it is a point that one should bear in mind.
Without commenting on the merits of the case that we are discussing, it might be said that a farm worker should be sufficiently literate because of the requirements of the health and safety legislation. If we were to say that no one should be entitled to work on a farm unless they were literate to that extent, I am not sure what it would do to agriculture, but I certainly have my suspicions. It would be bizarre if a graduate manager were able to work on a farm but not an agricultural worker.
My hon. Friend made two telling points. He mentioned the ludicrous proposition that if Mr. Hurren had broken his wrist he would have been able to avail himself of the services of an amanuensis and pass his examinations. My hon. Friend said that this young man had a trial run and passed with flying colours. Mr. Hurren is a young man of proven ability in his chosen job. He is of substantial intellectual ability that is incapable of being measured in conventional terms. He has secured the support of the college where he studies, and I understand from my hon. Friend that he has secured a job. He was obviously capable of convincing his employer that he was capable of operating at a high level.
My hon. Friend is concerned that facilities that would be available to those in middle-class cerebral occupations —where one might have thought that the necessity for literacy would be greater—are being denied to somebody

who is in a more manual occupation. It is no secret that hon. Members who have made substantial contributions to our deliberations over the years—sometimes in government—have suffered from dyslexia. In a middle-class way, they have been able to compensate for their disability and have made a substantial contribution.
I prefaced my remarks—I make no apologies for doing so—by saying that it would be inappropriate for me to comment on the circumstances of this specific case. I cannot fail to be impressed not only by the way in which my hon. Friend advanced his case but by the struggles that this young man has had, and the creditable efforts he has made to equip himself for life. I have tried to say something to my hon. Friend other than mere pious platitudes and compliments. As a result of the debate, I shall readHansard and write to the City and Guilds of London Institute telling it of my concern about the debate and drawing it to its attention. I shall ensure that the Training Commission and NCVQ understand the concern that has been expressed in the debate.
Certainly, even at this late hour—or it may be an early hour—if the effect of the debate is to ensure that such young people have the ability to qualify for tasks that they are obviously capable of doing, the fact that one or two of us may have slightly blurry eyes will be a small price to pay.
Once again, I thank my hon. Friend for giving us the opportunity to consider this subject.

Question put and agreed to.

Adjourned accordingly at sixteen minutes to Four o 'clock.